CHINESE  CREWS  AND  THE  WRECKING 
OF  THE  "RIO." 

No.  12368. 


IN.    THE 


iiatrtrt  (Unurt   of  X\\t  Itittfii   States 

IN    AND    FOR    THE 

NORTHERN  DISTRICT  OF  CALIFORNIA. 

IN    ADMIRALTY. 


In  the  Matter  of  the  Petition  of  the 
PACIFIC    MAIL    STEAMSHIP    COMPANY, 

Owners  of  the  American  Steamship  '*  City  of 
Rio  de  Janeiro,''  for  Limitation  of  Liability 


ARGUMENT    OF    WILLIAM    DENMAN,    FOR 
THE    CLAIMANTS 


INDEX. 

Page 

1.  Negligence  in  bringing  in  the  ship  in  the  fog,  darkness,  ebb 

tide  and  freshet  water 1 

2.  Testimony  showing  said  negligence    11 

3.  Authorities  that  ship  is  liable  for  the  negligence  of  the  pilot.  15 

4.  The  insufficiency  of  the  Chinese  crew  supplied  by  the  owners, 

thus  defeating  their   right  to  a   limitation   of   liability.  ...  16 

5.  Authorities   supporting  same    18 

G.     Evidence   supporting   same 27 

7.     Summary  of  occurrences  at  the    wreck 53 


THE  STAR  TRKSS-JAMES  H.  BARUy— S.F. 


«  S 


SAlSr  CARLOS    1/09 


ROBERT  ERNEST  COWAN 


Point  Lobos.  Rio's  anchorage  (i'.   miles  to  Fort).  Point   Bonita   (J'_    miles  to   Fori 


The  Gate.  Fort  Poii 


IN  THE  MATTER  OF  THE  PETI- 
TION OF  THE  PACIFIC  MAIL 
STEAMSHIP  COMPANY,  OWN-  I    ^o.  12368 

>  January  20, 

ER  OF  THE  STEAMSHIP  '^RIO  /       1903. 
DE   JANEIRO,"   FOR  LIMITA- 
TION OF  LIABILITY. 


Argument  of  William  Dcnman  for  the  Claimants. 


FIRST    ISSUE. 

THE  NEGLIGENCE  IN  BRINGING  IN  THE 
SHIP  IN  THE  FOG  AND  DARKNESS,  IN 
THE  EBB  TIDE  AND  THE  FRESHET 
WATER. 

There  are  two  distinct  and  separate  issues  in 
this  case.  The  first  is,  ' '  Is  the  petitioner  liable  for 
the  loss  of  life  and  baggage  in  this  disaster?"  The 
second  is,  ' '  Can  the  petitioner  limit  its  liability  to 
the  value  of  the  ship  and  the  freight  pending!" 

The  first  issue  is  that  of  the  ordinary  damage 
suit  for  loss  of  life  by  the  negligent  wrecking  of  a 
ship  carrying  passengers  at  sea.  The  second 
is      something     entirely     different     and    arises 


from  an  extraordinary  relief  given  to  snip 
owners  under  certain  circumstances  by  a  United 
States  statute.  In  the  discussion  of  the 
first  issue  We  shall  confine  ourselves  to  the  negli- 
gence of  those  in  control  of  the  ship  in  bringing 
the  Rio  into  the  Golden  Gate,  under  the  condi- 
tions of  darkness,  of  a  heavy  fog,  of  a  strong  ebb 
tide,  of  winter  freshets,  and  of  known  insufficient 
marking  of  threatening  rocks. 

Under  the  second  we  will  show  from  the  evi- 
dence that  the  owners  themselves,  by  failing  to 
comply  with  a  United  States  statute  regulating 
passenger  carriers  at  sea,  actually  participated  in 
the  negligence  which  occasioned  the  deaths  by 
which  our  claimants  have  been  injured. 

Judging  from  awards  made  by  this  Court  in 
similar  cases,  the  claimants  can  show  damage 
amounting  to  somewhere  between  $55,000  and  $60,- 
000.  The  fund  in  the  registry  amounts  to  about 
$25,000  with  interest. 

In  support  of  our  first  issue  we  shall  confine  our- 
selves to  the  testimony  of  the  petitioner's  prize 
witness,  the  pilot  Jordan. 

From  his  testimony  it  appears  that  the  **City 
of  Rio  de  Janeiro, ' '  engaged  in  carriage  of  passen- 
gers by  sea  and  having  on  board  211  souls,  arrived 
off  the  coast  of  California  on  the  afternoon  of  Feb- 
ruary 21,  1901.    As  is  quite  customary  at  this  sea- 


VK 


son  of  the  year,  the  coast  was  fog  bound  and  the 
vessel  came  to  anchor  outside  this  port  near  the 
thirteen-fathom  buoy,  which  is  about  a  mile  out- 
side the  heads  and  three  and  a  half  miles  distant 
from  the  Golden  Gate.  The  night  continued  foggy, 
he  says,  at  least  until  9  o  'clock,  when  he  retired. 

At  a  few  minutes  before  4  on  the  following 
morning  the  pilot  was  called  and  went  on  deck. 
At  that  time,  according  to  his  testimony  (p.  11), 
the  weather  was  clear  IN  PLACES. 

He  was  able  to  see  the  Point  Bonita  light,  at  the 

northwest  head  of  the  outer  bay,  nearly  ahead ;  the 

lights  on  Point  Lobos,  the  south  head,  lay  on  his 

starboard  quarter,  but  he  could  not  see  the  Fort 

^  Point  light,  which  lies  between  the  two  heads  and 

en 

•^  at  the  eastern  end  of  the  outer  bay,  two  and  a  half 
>- 

5  miles  distant,  and  at  the  western  end  of  the  Golden 
Zi  Gate.    He  could  see  the  bank  of  fog  lying  in  the 

as 

g  inner  bay  and  coming  down  to  the  mouth  of  the 
«  gate  itself  and  obscuring  the  Fort  Point  light.  The 
tide  was  ebbing,  as  is  indicated  from  the  position 
of  the  ship  as  she  lay  at  anchor.  It  had  been  rain- 
ing and  it  was  the  season  of  spring  freshets, 
which,  coming  down  from  the  watersheds  of  the 
San  Joaquin  and  Sacramento,  re-enforce  the  re- 
turning tide  of  the  bay  with  a  furious  current. 
The  almanac  shows  that  the  sun  rose  on  that  day 
at  6:40,  so  that   it   was  now  over  two  and  three- 


.302;JS7 


quarter  hours  before  sunrise  and  quite  dark— how 
dark  can  best  be  determined  from  the  fact  that  an 
hour  later,  when  the  ship  sank,  it  was  impossible 
to  distinguish  Chinese  from  white  men  across  the 
deck.  There  was  no  moon,  so  we  can  assume  that 
at  the  lime  the  pilot  came  on  deck  it  was  as  dark  as 
it  could  be. 

It  was  under  these  conditions  that  the  conversa- 
tion took  place  between  Captain  Ward  and  the 
Pilot  regarding  the  bringing  in  of  the  ship.  Look- 
ing at  the  trial  of  this  case  from  its  dramatic  stand- 
point—and every  young  attorney  who  loves  his 
profession  necessarily  must— I  feel  the  keenest  re- 
gret that  I  was  unable  to  bring  out  on  the  stand 
here  the  exact  words  that  were  then  spoken.  The 
deliberation  seems  to  have  lasted  from  4  o'clock 
until  4 :35,  when  the  ship  finally  started  ahead ;  and 
in  the  desultory  debate  of  those  thirty-five  min- 
utes hung  in  the  balance  the  lives  of  one  hundred 
and  twenty-seven  human  beings.  For  some  reason 
not  given,  the  pilot  is  unable  to  tell  us  any  of  the 
sentences  that  passed  between  them.  It  is  not  for 
us  here  to  fix  the  blame  on  one  or  the  other  of 
these  two ;  other  tribunals  have  that  jurisdiction. 
From  the  testimony  of  the  pilot,  they  both  finally 
agreed  that  they  would  make  an  attempt  to  enter 
that  narrow  tidal  river  which,  in  a  metaphor  only 
too  grimly  true  for  the  poor  souls  below  in  their 
bunks,  had  been  named  the  Golden  Gate. 


At  4:25,  according  to  Mr.  McAllister's  state- 
ment, the  anchor  was  hove  short,  and  then  for  ten 
minutes  longer,  while  the  ship  was  drifting  in  the 
tide,  this  same  debate  continued,  until  at  4:35  the 
captain  gave  the  order,  "Let  her  go."  Now,  what 
was  it  that  made  them  hesitate  for  those  ten  min- 
utes after  they  had  hauled  up  the  slack  of  their 
anchor  chain?  Let  us  try  to  picture  something  of 
what  was  passing  through  the  minds  of  these  men 
to  whom  were  entrusted  the  lives  of  all  those  pas- 
sengers. 

In  the  first  place,  there  was  the  Golden  Gate  it- 
self, a  narrow  channel  through  which  they  must 
steer  by  a  course  that  lay  less  than  a  quarter  of  a 
mile  from  the  sunken  rocks  that  hedge  its  southern 
shore.  So  short  is  the  distance  between  the  high 
bluffs  on  each  side  of  the  channel  that  once  in  it, 
in  the  pilot's  own  words,  he  could  not  "in  any 
safety"  turn  back  to  his  anchorage.  It  might  be 
done  in  clear  weather,  he  says,  but  not  in  a  fog. 
Once  inside  they  knew  they  must  go  ahead. 

In  the  second  place,  there  is  the  great  depth  of 
water  inside  the  heads— so  deep  that  you  could 
not  sound  for  the  bottom  and  thus  detenuine  the 
location  of  the  ship  without  stopping  and  drifting 
with  the  tide.  In  the  pilot's  own  words,  you  could 
not  sound,  because  "you  would  have  to  stop  the 
ship,  and  then  the  ship  would  have  been  in  dan- 


6 

ger— more  danger  than  going  ahead."  Once  in- 
side the  heads,  they  knew  that  they  must  run 
for  two  and  a  half  miles  where  it  was  impossible 
to  get  any  bearings,  save  from  the  fog  horns, 
whose  clamorous  echoes  in  the  high  cliffs  running 
down  from  Mount  Tamalpais  are  most  deceitful. 

In  the  third  place,  the  sunken  rocks  inside  the 
heads  are  so  dangerous  that  they  are  supposed  to 
be  marked  with  bell  buoys.  Mile  Rock  has  such  a 
buoy,  but  in  the  language  of  the  pilot,  ''you  never 
can  hear  it  over  probably  100  yards  or  so. ' '  And 
this  further  menace  must  have  gone  through  his 
mind  in  those  ten  minutes  of  hesitation. 

In  the  fourth  place,  there  was  the  darkness  of  a 
moonless  night.  Fog  in  the  day  is  bad  enough,  but 
at  night  one  could  not  even  discern  the  cliffs  that 
overhang  the  entrance  of  the  Gate.  In  the  day- 
light these  cliffs  loom  up  through  the  fog  for  quite 
a  distance,  and  in  a  general  way  may  indicate  the 
course  of  the  channel ;  but  now  it  was  absolute 
darkness.  Did  they  think  of  this  also  as  they 
drifted  those  ten  minutes  in  the  tide?  That  will 
never  be  known,  but  if  they  failed  to  consider  it, 
that  failure  also  constituted  negligence. 

In  the  fifth  place,  there  was  the  ebbing  tide,  pour- 
ing through  this  narrow  channel  not  only  the  re- 
turning waters  of  the  entire  bay  of  San  Francisco, 
but  also  the  spring  freshets  of  the  Sierras  and  the 


Coast  Eange,  collected  from  the  great  watersheds 
of  the  Sacramento  and  San  Joaquin  Valley,  over 
25,000  square  miles  in  extent.  This  enoimous 
body  of  water  rushes  out  of  the  Golden  Gate  into 
the  outer  bay  formed  by  Point  Lobos  and  Point 
Bonita,  and  eddies  and  swirls  in  currents  and 
cross-currents  of  every  conceivable  character,  just 
as  in  the  pool  at  the  foot  of  a  river  cascade.  Only 
here  the  forces  at  play  are  so  tremendous  that  this 
iron  ship,  sinking  to  the  bottom  of  the  outer  bay, 
was  dragged  along  the  floor  of  the  sea  so  far  from 
the  point  of  her  w^-ecking  that  the  most  diligent 
soundings  and  diving  for  several  miles  around 
have  failed  to  locate  her. 

In  the  sixth  place,  and  most  important  of  all,  the 
deterring  influences  that  caused  that  half  hour  of 
debate  and  hesitation  on  the  part  of  the  captain  and 
pilot  was  the  land  fog— ''thick  like  steam,"  to  use 
the  pilot's  language— which  hung  in  a  great  bank 
over  the  inner  bay,  covering  the  Fort  Point  light, 
but  not  reaching  quite  out  to  the  heads.  Says  the 
pilot,  "I  hesitated  because  I  thought  possibly  this 
fog  might  come  out.  Sometimes  it  does,  some- 
times it  only  reaches  down  to  the  heads,  sometimes 
it  comes  out  altogether."  The  captain  thought  it 
would  clear  up  by  daylight,  as  this  was  often  the 
case,  and  the  pilot  agreed  with  him. 

Was  it  any  wonder  they  hesitated  to  take  these 


8 

211  human  beings  into  that  tidal  canon,  so  narrow 
that  once  in  they  cannot  turn  back  if  there  is  a  fog ; 
so  deep  that  they  must  stop  the  ship  to  take  sound- 
ings ;  in  an  ebb  tide  and  freshet  water  so  swift  and 
with  such  cross-currents  that  it  was  more  danger- 
ous to  stop  and  take  soundings  than  it  was  to  go 
ahead  in  the  fog  without  them;  where  they  must 
pass  sunken  rocks  of  which  the  tinkle  of  the  bell 
buoys  gave  no  warning  beyond  a  hundred  yards — 
and  all  in  the  darkness  of  a  moonless  night?  The 
wonder  to  my  mind  is  that  the  Pacific  Mail  Steam- 
ship Company,  bidding  for  the  passenger  traffic  of 
the  Pacific  Ocean,  dares  appear  in  open  court  and 
claim  that  it  was  proper  seamanship  to  even  con- 
sider bringing  the  ship  in  under  these  circum- 
stances. 

Why!  it  was  negligence  to  risk  the  fog  in  that 
narrow  channel  at  any  time,  and  tenfold  indefensi- 
ble in  view  of  the  likelihood  of  the  fog— a  land  fog 
—dissipating  with  the  sunrise.  It  was  greater  neg- 
ligence to  bring  her  in,  in  the  fog  and  darkness 
combined ;  for  if  the  sunrise  did  not  dissipate  the 
fog,  it  would  at  least  have  caused  the  Marin  hills 
to  loom  up  in  it  and  have  given  some  notion  of 
where  they  were.  But  most  monstrously  negligent 
of  all  was  the  attempt  to  find  that  narrow  opening 
in  the  fog  and  darkness,  in  the  ebb  tide  and  freshet 
water  with  its  eddies  and  cross-currents,  when  by 


waiting  less  than  four  hours  till  slack  water,  be- 
tween the  tides,  they  would  have  had  a  good  forty- 
five  minutes,  when  the  current  is  absolutely  stilled, 
to  run  the  four  miles  that  would  have  taken  them 
from  their  anchorage  through  the  Gate  and  into 
the  inner  bay. 

Leaving  aside  entirely  the  question  whether  or 
not  it  was  negligence  to  leave  their  safe  anchorage 
and  to  attempt  to  nose  into  the  Gate  before  the  fog 
caught  them,  their  negligence  was  established  be- 
yond the  slightest  question  when  they  continued 
their  course  after  running  into  the  fog  some  two 
and  a  half  miles  from  the  entrance  to  the  Gate. 
Then  the  very  thing  had  occurred  which  the  pilot 
by  his  own  testimony  admits  had  caused  him  to 
hesitate  even  after  he  had  hove  his  anchor  up 
short.  The  fog  had  come  out  of  the  harbor.  His 
testimony  is  that  he  encountered  it  when  the  ship 
was  just  about  abreast  of  Point  Bonita  Light- 
house, which  lies  in  an  air  line  about  two  and  a 
half  miles  from  the  rock  by  the  Fort  on  which 
they  were  wrecked.  Two  and  a  half  miles  in  air 
line  we  must  note,  because  at  that  time  the  ebb  tide 
carried  with  it  a  current  which  could  not  have 
been  less  than  five  or  six  miles  an  hour.  This 
meant  that  to  reach  the  rock  just  off  of  Fort  Point, 
on  which  they  were  finally  wrecked,  they  must 
travel  over  four  miles  of  water. 

Now,  it  cannot  be  for  a  moment  contended  that 


10 

this  fog  came  on  the  pilot  suddenly,  dropped  down 
from  a  clear  sky  as  it  were,  and  caught  him  in  this 
trap  before  he  could  retreat,  for  he  stated  here  on 
the  stand  before  your  Honor  that  he  ran  for  half 
a  mile  in  the  fog  before  it  became  too  thick  for  him 
to  go  about  and  steam  to  his  safe  anchorage.  Ap- 
parently he  said  to  himself,  "I  have  taken  the 
chances  up  to  this  point  and  I  might  just  as  well 
risk  the  whole  game."  Whatever  may  have  been 
in  his  mind,  however,  he  took  the  chances  and  if 
there  had  been  any  doubt  or  any  question  of  his 
negligence  up  to  this  point,  it  becomes  fixed  upon 
him  from  the  moment  that  he  continued  on  his 
course  after  he  ran  into  the  fog  bank  which  had 
obscured  the  Fort  Point  light. 

And  what  was  that  course?  Without  burdening 
the  Court  with  the  consideration  of  the  details  of 
steering  on  that  morning,  it  is  sufficient  to  say 
that  the  course  the  pilot  had  chosen  carried 
him  within  a  quarter  of  a  mile  of  the  rock  on  which 
he  was  wrecked.  He  entered  the  fog  at  a  point 
two  and  a  half  miles  in  an  air  line  and  four  miles 
of  water  travel  distant  from,  that  rock.  This  means 
that,  if  in  traveling  in  the  fog,  guided  only  by  the 
treacherous  signals  of  the  fog  horns  reverberating 
in  the  Marin  hills,  he  should  be  carried  out  of  his 
course  by  the  conflicting  and  whirling  currents  of 
this  ebb  tide  a  distance  to  the  south  of  but  one- 
sixteenth  of  the  distance  to  be  travelled  to  the 


11 

Gate,  he  must  of  necessity  wi'eck  his  ship.  The 
course  chosen  was  negligent  in  itself,  and  it  be- 
comes a  matter  of  indifference  from  this  stand- 
point whether  or  not  the  gate  were  a  mile  or 
twenty  miles  wide. 

They  did  go  ahead  in  the  fog ;  they  were  swung 
off  of  their  course  a  quarter  of  a  mile  in  those  four 
miles.  They  did  strike  on  a  sunken  rock,  whether 
or  not  one  of  those  protected  by  the  bell  buoy  that 
did  not  ring  does  not  appear.  The  ship  was 
wrecked  and  has  never  been  found.  One  hundred 
and  twenty-seven  people  were  drowned.  The  very 
thing  that  they  feared  would  happen  as  the  ship 
swung  in  the  tide  or  drifted  in  it  a  mile  there  out- 
side of  the  heads,  did  happen.  They  took  their 
chances,  played  in  poor  luck,  and  incidentally 
drowned  one  hundred  and  twenty-seven  people. 

I  am  now  going  to  read,  your  Honor,  in  closing 
my  argument  on  this  first  issue  in  the  case,  a  few 
excerpts  from  the  testimony  of  Pilot  Jordan,  which 
bear  out,  to  the  smallest  detail,  the  statements  I 
have  just  made  to  you : 

p.  11. 

Q.     How  was  the  weather  when  you  were  called? 
A.     It  was  clear,  CLEAR  IN  PLACES.     *     *     * 

pp.    23-24. 
Q.     Was   there   any   condition    existing,    any    climatic    condition 
at  that  time,   or  any  geological  condition  existing  at  that  time, 
that  would  change  the  current  f 
A.     Outside  the  heads? 


12 

Q.     Inside.  A.     There  had  been  heavy  rains,  that  caused  the 

rivers  to  rise  and  caused  freshets. 
Q.     This  was  in  February,   1901?  A.     Yes,  sir. 

Q.     How  long  had  it  been  raining  before  the  disaster  occurred? 
A.     We  had  very  little  rain  outside  where  I  was.     I  do  not  know 
how  long  it  had  been  raining  inside. 
Q.     Had  it  been  raining  outside?  A.     Very  little. 

Q.     For  how  long?  A.     It  had  been  raining  one  day  I  think. 

Q.  At  this  season  of  the  year,  is  it  unusual  to  have  a  large  flow 
of  fresh  water  supplementing  the  tides  of  the  bay  and  coming 
out  the  Gate? 

A.  It  is  not  unusual  to  have  a  little  extra,  more  than  there  is  in 
the  summer  months. 

Q.  Is  it  unusual  to  have  at  various  and  intermittent  periods 
during  the  winter  large  quantities  of  fresh  water  supplementing 
the  flow  out  of  the  Gates?  A.     Well,  more  or  less. 

Q.     That  is  liable  to  happen  at  any  time  during  the  winter? 
A.     Well,  more  or  less,  but  not  as  strong  as  I  found  it  at  that 
time. 

Q.  It  is  a  thing  that  is  likely  to  happen  at  any  time  during  the 
winter  months?  A.     Of  course,  the  more  rain,  the  more  cur- 

rent. 

p.  11. 

Q.     You  say  you  started  to  get  under  way.     Did  you  stop? 
A.     Yes,  I  had  her  hove  short  and  then  stopped. 
Q.     Then   what    happened? 

A.  I  stopped  because  I  saw  the  fog  in  the  bay.  Daybreak  came 
and  I  could  see  the  fog  up  the  bay  and  I  stopped  for  a  few  min- 
utes, and  then  hove  up  again  and  started.     *     *     * 

p.    20. 

Q.     WHY  DID  YOU  HESITATE  after  hauling  up  the  anchor. 

part  way  before  going  ahead? 

A.     I  THOUGHT  POSSIBLY  THIS  FOG  MIGHT  COME  OUT. 

Q.     What  did  you  say  to  the  Captain  about  the  fog  coming  out? 

A.     I  think  I  told  him  the  fog  was  liable  to  come  out,  the  bay  fog. 

Q.     Was  that  a  likely  thing? 

A.     Sometimes   it    does;     sometimes,    sometimes    it    only   reaches 

down  to  the  heads;    other  times  it  comes  out  altogether, 

Q.     Is  this  land  fog  thicker,  or  less  thick,  than  the  ordinary  sea 

fog? 

A.     Sometimes  it  is  a  white  fog,  something  like  steam,  and  it  is 

harder  to  see  through  than  a  regular  sea  fog. 

Q.     And  you  warned  the  Captain  that  this  thick  fog  was  likely 

to  come  out  of  the  bay— what  did  he  say  to  you  then? 


13 

A.  I  told  him  it  might  come  out.     He  thought  it  would  clear  up 

by  daylight  and  I  thought  so  myself.     *     »     * 

Q.  But  you  didn't  wait  untU  daylight? 

A.  It  was  daybreak  when  we  came  in. 

Q.  It  was  clearing  up  then? 

A.  No,  sir;    it  shut  down  afterwards  when  we  got  in  between 

the   heads,   but    all   of   this   time   you   could   see   land.     »     •     • 

p.   13. 

Q.     Did  the  fog  shut  down  on  you  very  heavy? 

A.     It  shut   down  very  heavy  when  we  got  down  in  the  narrow 

part.     *     *     * 

p.   7. 
Q.     Captain;    this  fog  that  you  met  as  you  came  in,  was  it  a 
land  fog  or  a  sea  fog? 

A.     It  was  a  land  fog.     It  came  out  of  the  bay.     We  had  a  sea 
fog  the  night  before.     *     *     * 

p.    26. 
Q.     This  point  you  now  indicate  is  about  on  a  direct  line  be- 
tween Point  Lobos  and  Point  Bonita?  A.     Yes,  sir. 
Q.     How  far  from  Fort  Point  when  you  struck? 
A.     About   21/4   miles. 

Q.     At  that  time  the  fog  began  to  settle  down? 
A.     Yes,  sir;    we  began  to  get  into  the  fog  some.     "We  did  not 
get   in   a  real   dense   fog  until  we   got   further   along.     *     *     * 

p.  27. 
Q.     YOU     PROCEEDED     HALF     A     MILE     IN     THE     FOG 
WHEN  YOU  COULD  HAVE  TURNED  AROUND  AND  GONE 
BACK  TO  YOUR  ANCHORAGE? 
A.     YES,  SIR.    IF  I  SAW  ANY  NECESSITY  FOR  IT.    *     *     * 

p.  12. 
Q.     At  that  time  after  you  had  been  running  about  fifteen  min- 
utes from  your  anchorage  in  thirteen  fathoms,  in  what  depth  of 
water  were  you,  after  a  run  of  fifteen  minutes? 
A.     About  twenty-five  or  thirty  fathoms,  maybe. 
Q.     Could  you  anchor  with  any  safety  in  thirty  fathoms? 
A.     No.    Well,  it  could  have  been  done  in  case  of  necessity,  but  I 
did  not  see  any  occasion  to  anchor.     IT  WOULD  HAVE  BEEN 
DANGEROUS    TO    HAVE    ANCHORED    THERE    IN    THAT 
TIDEWAY.     *     *     » 

p.  24. 
Q.     After  you   got   in   the     fog  what   soundings   did    you    take? 
A.     Did  not  sound  at  all.     *     *     » 


14 


p.  25. 
Q.  So  that  on  this  foggy  morning,  you  were  coming  into  the 
harbor  of  San  Francisco  on  a  course  that  was  only  a  quarter  of 
a  mile  from  a  rock  on  which  you  might  have  been  wrecked,  at  a 
season  of  the  year  when  heavy  freshets  are  likely  to  reinforce  the 
returning  tide  of  the  bay,  and  you  were  proceeding  in  that  fog 
without  taking  soundings,  is  that  true? 

A.     Yes,  sir.    It  would  have  done  no  good  to  take  soundings.    You 
could  not  have  got  bottom  at  any  kind  of  length  there. 
Q.     How  do  you  know? 

A.  Because  you  would  have  had  to  stop  the  ship,  and  then  the 
ship  would  have  been  in  danger,  MOEE  DANGEE  THAN  IN 
GOING  AHEAD. 

Q.  Could  you  not  have  turned  about  and  gone  back  to  your  an- 
chorage ? 

A.  Not  with  any  safety  after  we  once  got  inside  the  Golden 
Gate. 

Q.  You  could  not  have  done  that?  A.  No,  sir;  not  in  safety. 
Q.     Why  would  it  not  be  safe? 

A.  Because  the  place  is  narrow.  You  might  do  it  in  clear 
weather  but  not  in  fog. 

SECOND  OFFICER  COGHLAN  (p.  39  of  Record). 

Q.  You  say  it  would  take  about  three-quarters  of  an  hour  for 
the  ship  to  proceed  from  the  point  where  she  raised  anchor  to 
the  point  where  she  was  wrecked?  A.     Yes,  sir. 

Q.     And  that  she  ran  into  the  fog  about  twelve  or  fifteen  min- 
utes after  she  started?  A.     About  that. 
Q.     How  far  was  this  from  the  point  where  she  struck. 
A.     About  21/^  miles,  I  should  judge,  or  maybe  a  little  more  than 
that. 

Q.     You  say  that  the  Rio  minded  her  helm  well? 
A.     Very    well. 

Q.     Could  you  have  come  about  in  2%  miles  and  gone  back  to  a 
safe  anchorage  if  the  Captain  had  so  desired? 
A.     You  mean  would  it  have  been  possible? 
q.     Yes. 

A.     In  clear  weather  it  would  have  been  possible;    yes,  sir. 
Q.     Would   it   have   been   possible   under   the   weather   conditions 
as  they  were? 

A.  It  would  have  been  possible;  yes,  sir;  it  is  just  as  possible 
in  the  fog  as  it  would  be  in  clear  weather. 


15 

The  ship  is  liable  for  injuries  caused  by  the  negligence  of  a 
pilot,  even  though  compelled  to  accept  him  by  a  State  or 
Federal  Statute. 

In  the  case  of  the  China,  7  Wallace,  53,  the 
injury  complained  of  arose  from  the  negligence 
of  a  pilot  which  the  ship  was  compelled  to  employ 
under  a  statute  of  the  State  of  New  York  similar  in 
its  nature  to  that  of  California.  It  was  held  that  the 
ship  was  liable  for  the  damages,  although  the  neg- 
ligence was  not  participated  in  by  any  other  mem- 
ber of  the  crew. 

In  Sherlock  vs.  Allen,  Administrator,  93  U.  S. 
105,  the  owners  were  held  liable  for  the  negligence 
of  a  pilot  which  they  were  compelled  to  take  by 
Statute,  the  negligence  causing  the  death  of  de- 
fendant's intestate. 

The  law  has  been  recently  summarized  and  au- 
thorities collected  in  the  recent  case  of  Homer 
Ramsdell  Company  vs.  La  Com.  Gen.  Trans-At- 
lantique,  182  U.  S.  406,  in  which  it  is  held  that  the 
ship  is  liable  in  Admiralty  and  probably  the  own- 
ers also,  though  the  owners  are  not  liable  at  com- 
mon law,  where  they  are  compelled  to  employ  the 
pilot. 


16 

SECOND    ISSUE. 

THE  INSUFFICIENCY  OF  THE  CHINESE 
CREW  FURNISHED  BY  THE  OWNERS, 
WHICH  DEFEATS  THEIR  APPLICATION 
TO  LIMIT  THEIR  LIABILITY. 

We  now  approach  the  second  issue  raised  by  the 
pleadings  in  this  case,  which  is,  "Can  the  peti- 
tioner avail  itself  of  the  Statute  of  Congress  to 
limit  its  liability,  which  would  amount  to  some 
$55,000.00  or  $60,000.00  on  the  claims  which  have 
been  filed  here,  to  the  sum  of  $25,000.00,  or 
thereabouts,  constituting  the  value  of  the  ship 
after  she  was  wrecked,  and  the  freight  pending?" 

On  this  issue  the  petitioner  is  the  moving  party 
and  necessarily  on  him  falls  the  burden  of  proof. 
This  Statute  of  Congress  affords  an  extraordinary 
remedy  whereby  the  ship  owner  may  escape  his 
liability  for  the  negligence  of  his  servants  by  pay- 
ment of  a  very  insignificant  sum.  It  is  a  statutory 
remedy  and  hence  must  be  strictly  construed 
against  the  party  desiring  to  avail  himself  of  it. 

Were  there  any  doubt  at  all  about  the  burden  of 
proof  falling  on  petitioner  that  doubt  would  be 
dispelled  when  we  consider  that  by  the  practice 
of  insurance,  which  was  in  vogue  at  the  time  that 
the  Statute  was  passed,  the  ship  owner  is  enabled 
by  insuring  his  vessel  and  the  freight  pending 


17 

to  escape  scot  free  from  any  liability  at  all  for 
damages  arising  from  the  total  loss  of  his  ship  by 
the  negligence  of  his  sei'vants.     The  Courts  have 
uniformly  held  that  the  ship  owner  may  retain  his 
insurance  for  the  ship  and  the  freight  pending; 
all  he  is  compelled  to  stipulate  for  is  the  value  of 
the  ship  after  the  tvreck,  which  is  nominal,  and  the 
freight    pending    for   the   voyage.      As    a   result 
of     this     Statute     the    unscrui^ulous     owner     is 
able    to    say   to    his    captains,    ''Of    course   you 
are    to  use  every  care  to  protect  your    passen- 
gers, and  you  are  not  to  take  unnecessary  risks 
in  bringing  in  your  ship,  but  of  course  you  un- 
derstand that  if  you  do  take  risks  and  the  ship 
is    completely   wrecked    and   the    passengers    are 
drowned,  we  lose  absolutely  nothing,  for  we  may 
retain  all  the  insurance  money  for  the  vessel  and  we 
are  compelled  to  pay  by  way  of  damages  only  the 
insurance  money  for  the  pending  freight.    Do  not 
take  chances  on  bringing  your  ship  in,  but  remem- 
ber that  the  more  voyages  made  a  year  the  greater 
the  dividends  of  the  company.     True,  there  is  a 
risk  of  loss  of  life,  but  there  is  no  risk  of  loss  of 
money,  though  the  ship  be  absolutely  lost  by  your 
negligence."     I    repeat   that   when   we   consider 
the     power     that    this     Statute    places     in     the 
hands   of  ship   owners   to  escape  their  liability, 
there  cannot  be  the  slightest  doubt  that  upon  them 


18 

must  be  the  burden  of  proving  that  they  have  com- 
plied with  the  requirements  of  the  Statute. 

Now,  the  Eevised  Statute  of  the  United  States, 
Section  4463,  provides  that  "No  steamer  carrying 
passengers  shall  depart  from  any  port  unless  she 
shall  have  in  her  service  a  full  complement  of 
licensed  officers  AND  FULL  CREW,  SUFFI- 
CIENT AT  ALL  TIMES  TO  MANAGE  THE 
VESSEL,  including  the  proper  number  of  watch- 
men. ' ' 

In  order  to  limit  his  liability  the  petitioner  has 
resting  upon  him  the  burden  of  proving  that  the 
"damage  or  injury  done,  occasioned  or  incurred" 
shall  be  done  "without  the  privity  or  Imowledge 
of  such  owTier  or  owners"  (U.  S.  It.  S.,  4283). 

The  issue  presented  by  the  pleadings  in  this 
case  denies  that  the  petitioner  complied  with  4463 
R.  S.  above  mentioned,  as  is  set  forth  in  para- 
graphs VI,  VII,  VIII,  IX  and  X  of  the  answers 
of  the  Estate  of  Henshall,  the  Estate  of  Dodd  and 
the  Estate  of  Guy  on. 

In  paragraphs  VII  and  VIII,  the  sufficiency  of 
the  crew  is  denied  in  the  following  language: 

'  *  That  at  no  time  subsequent  to  the  10th  day  of 
December,  1900,  did  petitioner  provide  the  said 
steamship  so  engaged  as  a  common  carrier  of  pas- 
sengers by  sea,  with  a  full  crew,  sufficient  at  all 
times  to  manage  the  vessel,  but  that  the  crew  pro- 


19 

vided  by  petitioner  was  insufficient  in  this,  that 
all  the  members  of  said  crew  comprising  the  sail- 
ors of  her  deck  department,  the  firemen  and  the 
coal  passers  were  Chinamen,  and,  saving  only  the 
boatswain  and  the  first  fireman,  were  nnable  to 
speak  or  understand  any  European  language,  or 
any  language  spoken  by  the  officers  of  the  said 
steamship,  and  that  the  officers  of  the  said  steam- 
ship were  none  of  them  able  to  speak  any  lan- 
guage intelligible  to  the  said  Chinamen,  and  that 
the  only  course  which  the  said  Chinamen  could 
receive  orders  from  the  said  officers  was  through 
the  two   Chinamen  above  mentioned,  to-wit,  the 
boatswain  and  the  first  fireman ;  and  that  the  only 
persons  on  the  said  steamship  who  were  convers- 
ant with  the  lowering  of  her  life  boats,  and  who 
understood  both  the  language  of  her  officers  and 
of  her  said  Chinese  crew,  were  the  said  boatswain 
and  first  fireman. 

"That  there  were  upon  the  said  steamship,  at 
all  times  subsequent  to  the  10th  day  of  December, 
1900,  and  at  the  time  of  her  wreck  and  founder- 
ing hereinafter  set  forth,  eleven  life  boats,  and  that 
the  number  of  persons  on  the  said  steamship  at 
the  time  of  said  foundering  was  more  than  two 
hundred  and  ten;  and  that  it  was  necessary  to 
lower  all  the  said  life  boats  to  carry  safely  from 
the  said  steamship  all  the  said  persons,  and  that 


20 

the  said  Chinese  were  necessary  to  properly  lower 
and  man  the  said  life  boats  and  place  the  passen- 
gers therein  at  such  time  as  the  wrecking  and 
foundering  of  said  steamship  as  hereinafter  de^ 
scribed,  and  that  at  no  time  within  one  year  prior 
to  the  wreck  of  said  vessel  had  there  been  a  drill  in 
the  lowering  of  the  said  life  boats  from  the  said 
steamship,  and  that  at  the  time  of  her  wreck  and 
foundering  there  were  but  eighteen  members  of 
the  crew,  to-wit,  the  members  of  the  deck  depart- 
ment, who  had  at  any  time  within  a  year  prior 
thereto  lowered  or  assisted  in  lowering  any  life 
boats  from  the  side  of  said  steamship, ' ' 

Some  question  may  be  raised  as  to  whether  or 
not  the  word  "sufficient"  appearing  in  Section 
4463  of  the  R.  S.  means  anything  more  than  that 
the  owner  shall  supply  a  crew  sufficient  IN  NUM- 
BER to  man  the  ship.  Such  an  interpretation  was 
suggested  to  me  by  one  of  the  older  practitioners 
in  the  State  Courts  as  a  conceivable  one.  In  Ad- 
miralty, however,  we  find  that  the  word  "suffi- 
cient" is  used  universally  as  including  many  qual- 
ifications other  than  mere  number,  and  its  juxta- 
position to  the  word  ' '  full ' '  shows  that  those  other 
qualifications  are  intended  to  be  designated.  A 
crew  must  not  only  be  full  in  number  but  sufficient 
in  experience  and  other  qualifications  at  all  times 
to  manage  the  ship.  We  find  on  examining  the 
English  and  American  Admiralty  decisions  that 


21 

the  ship  itself  is  repeatedly  spoken  of  as  "suffi- 
cient" in  the  sense  of  being  efficient  for  the  pur- 
pose of  the  voyage.  Judge  Seawell  says,  in  Kim- 
hall  vs.  TucUr,  10  Mass.,  195,  "If  a  vessel  SUF- 
FICIENT at  the  commencement  of  the  voyage  is 
entirely  lost, ' '  etc. 

Judge  Clifford,  in  The  Lady  Pike,  21  Wallace, 
13  and  14,  says,  "Applied  exclusively  to  the  num- 
ber of  steamer's  company,  the  complaint  contained 
in  the  first  assignment  of  errors  would  not  be  well 
founded,  as  the  crew  was  sufficient  IN  NUMBER, 
and  the  proof  shows  that  the  steamer  had  on  board 
two  pilots  and  two  master  mariners ;  but  the  grava- 
men of  the  complaint  is  that  neither  the  master 
in  charge  of  the  deck  nor  the  pilot  had  any  SUF- 
FICIENT knowledge  of  the  craft  under  their  com- 
mand, nor  of  the  dangers  of  the  navigation  in  pass- 
ing down  the  river,"  etc.  This  case,  which  cites 
many  authorities,  decides  that  from  lack  of  this 
knowledge  of  the  craft  and  of  the  dangers  to  be 
encountered,  the  crew  was  insufficient. 

The  duty  to  properly  man  the  ship  of  course  ex- 
ists entirely  apart  from  any  statu  to  ly  require- 
ments; and  proper  manning  consists  in  much 
more  than  the  mere  placing  of  a  large  enough 
number  of  men  on  board  the  shi])  to  handle  her. 
The  men  must  be  fitted  for  the  sei*vice,  and  this 
duty  rests  on  the  owners  even  in  a  foreign  jjort. 
We  find  in  The  Gentlemen,    Olcott    115,  that    the 


22 

owners  were  held  liable  for  furnishing  an  inade- 
quate crew,  which  they  shipped  at  the  Gambia 
river,  West  Africa,  large  enough  in  numbers  but 
sick  with  fever. 

Where  a  captain  did  not  know  the  coast  and  en- 
tered the  enemies'  j^ort  and  was  captured,  it  was 
held  that  the  vessel  was  "incompetently  fitted  out" 
because  there  was  no  proi3er  master  for  the  pur- 
pose of  the  voyage.    Tait  vs.  Levy,  14  East.,  482. 

In  the  G.  II.  Ross,  111  Federal  208,  the  Circuit 
Court  of  Appeals  for  this  circuit  held  that  where 
the  owners  appointed  an  incompetent  sujjerinten- 
dent  to  manage  ships  in  Alaska,  they  could  not 
limit  their  liability  from  loss  arising  from  sending 
out  a  barge  at  the  wrong  time  of  the  year. 

Judge  Hawley  has  said,  in  the  case  of  In  re 
Meyer,  74  Federal,  885,  ''It  is  the  duty  of  the  own- 
ers of  a  steamer  carrying  goods  and  passengers 
not  only  to  provide  a  seaworthy  vessel,  but  they 
must  also  provide  a  crew  ADEQUATE  IN  NUM- 
BERS AND  COMPETENT  FOR  THEIR  DU- 
TIES with  reference  to  all  the  exigencies  of  the 
intended  route." 

There  is  a  further  point  of  law  that  I  desire  to 
call  at  this  time  to  the  attention  of  the  Court.  If 
the  owner  of  a  ship  fail  to  comply  with  the  affirm- 
ative requirements  of  the  U.  S.  Statute,  such  as  the 
requirement  for  a  sufficient  crew  made  by  Sec- 
tion 4463,  it  will  be  presumed  in  the  case  of  dam- 


23 

ages  arising  to  the  passengers  that  the  injuiy 
was  caused  by  that  failure.  This  has  been  the  re- 
peated holding  of  the  Supreme  Court  in  a  very 
large  number  of  cases.  Of  this  rule  the  Court  in 
The  Pennsylvania,  19  Wallace,  13G,  has  said, 
"AVhen,  as  in  this  case,  a  ship  at  the  time  of  col- 
lision is  in  actual  violation  of  a  statutory  rule  in- 
tended to  prevent  collisions,  it  is  no  more  than  a 
reasonable  presumption  that  the  fault,  if  not  the 
sole  cause,  was  a  contributary  cause  of  the  disas- 
ter ;  in  such  a  case  the  burden  rests  upon  the  ship 
of  showing,  not  that  her  fault  might  not  have  been 
one  of  the  causes  or  that  it  probably  was  not,  but 
THAT  IT  COULD  NOT  HAVE  BEEN.  Such  a 
rule  is  necessary  to  enforce  obedience  to  the  man- 
date of  the  Statute. ' ' 

In  Richelieu  Navigation  Company  vs.  Boston  In- 
stance Company,  136  U.  S.,  415,  423,  the  Supreme 
Court  sustains  the  following  instruction :  "As  the 
Spartan  was  violating  statute  laws  of  Canada  in 
running  at  full  speed  in  a  dense  fog,  the  plaintiff 
must  show  affirmatively  that  neither  the  speed  of 
the  steamer  nor  the  defects  of  the  compass  could 
have  caused  or  have  contributed  to  cause  the 
stranding  of  the  steamer,    (p.  415.)  " 

In  the  Guild  Hall,  58  Federal,  800,  it  was  held 
that  where  a  master  was  habitually  drunk  the  bur- 
den was  on  the  owner  to  show  that  the  collision 


24 

COULD  NOT  HAVE  BEEN  AVOIDED  even  if 
a  competent  master  had  been  supplied. 

The  same  rule  has  been  applied  by  our  own  Cir- 
cuit Court  of  Appeals  to  a  case  arising  under  this 
Statute  to  limit  liability.  In  the  case  of  The  Annie 
Faxon,  75  Federal,  319,  the  owners  had  applied  for 
limitation  of  liability,  which  the  heirs  of  the  de- 
ceased contested  on  the  ground  that  the  boiler  of 
the  ship  had  not  been  inspected  by  the  local  in- 
spector before  being  used,  as  required  by  Section 
4418.  Judge  Gilbert  said,  ''There  is  in  the  record, 
it  is  true,  no  distinct  or  positive  evidence  that  the 
failure  to  inspect  the  boiler  after  the  repairs  was 
the  cause  of  the  explosion  and  that  an  inspection  at 
that  time  would  necessarily  have  disclosed  the  im- 
perfections and  weakness  which  resulted  in  the 
accident.  *  *  *  Probably  it  could  never  be 
proven  in  any  given  case  of  explosion  that  the  ac- 
cident occurred  through  a  failure  to  inspect  the 
boiler.  There  would  be  little  or  no  protection  in 
holding  that  after  an  explosion  an  injured  passen- 
ger, in  order  to  recover  under  4493,  must  prove 
that,  notwithstanding  the  absolute  failure  to  com- 
ply with  the  inspection  law,  there  were  in  the  boiler 
defects  that  would  necessarily  have  been  detected 
if  an  inspection  had  been  made  before  using  the 
same.  *  *  *  The  failure  to  comply  with  the 
inspection  law  may,  in  our  judgment  be  invoked 
to  prove  that  the  owner  is  not  entitled  to  the  ben- 


25 

efit  of  the  limitation  of  liability  law  as  claimed  iu 
the  libel  and  petition. ' '  (The  excerpts  from  Judge 
Gilbert's  opinion  are  from  pages  319  and  320  of 
the  Eeport.) 

Now,  the  case  of  the  Rio  is,  in  its  essential  fea- 
tures, identical  with  that  of  The  Annie  Faxon.  It 
appears  that  the  Rio  left  the  port  of  Honolulu  with 
a  crew  consisting  of  84  Chinamen,  officered  by 
white  officers.  It  appears  that  none  of  these  offi- 
cers could  speak  Chinese  and  that  none  of  the 
Chinese,  with  the  exception  of  the  boatswain  and 
one  fireman,  could  speak  English.  It  appears  that 
all  the  orders  from  the  officers  had  to  travel  from 
the  officers  to  the  crew  through  the  medium  of 
these  interpreters,  or  be  communicated  to  the  Chi- 
nese by  gestures.  It  appears  further  that  there  was 
on  board  of  the  ship  11  life  boats  and  that  there 
were  211  persons  to  be  taken  off  in  those  boats, 
making  19  persons  per  life  boat,  so  that  in  any 
emergency  which  might  arise  in  the  voyage  from 
Honolulu  to  San  Francisco  it  would  require  the 
launching  of  all  of  the  life  boats  to  get  off  all 
of  the  passengers  on  the  ship  in  an  expeditious 
manner.  It  is  quite  true  that  the  life  boats  would 
have  held,  if  crowded,  a  larger  number  of  persons 
than  19;  perhajjs  they  could  have  been  crowded 
to  have  held  30  persons  each;  but  it  would  have 
been  impossible  in  any  emergency  requiring  quick 
action  to  have  lowered  those  30  i)ersons  one  by 


26 

one  into  the  boats.  It  further  appears  that  there 
never  had  been  a  single  boat  drill  on  this  ship 
for  the  lowering  of  these  boats  for  more  than  six 
months  prior  to  the  wi'eck.  It  further  appears 
that  but  one  of  the  two  interpreters  on  board  of 
the  ship  was  conversant  with  the  lowering  of 
boats.  Such  was  the  condition  of  affairs  on  that 
dark  morning  when  the  ship  struck  the  rock  in 
the  fog  just  outside  of  the  port. 

Now,  this  insufficiency  of  the  crew  was  an  or- 
ganic one ;  the  crew  when  it  was  shipped  was  or- 
ganically imperfect.  It  may  be  asked,  How  was 
it  iDOSsible  to  run  the  ship  as  far  as  they  did  with 
such  a  crew?  and  the  answer  is  that  the  China- 
man is  an  excellent  imitator,  easily  trained,  and 
that  he  quickly  learned  through  his  interpreters 
how  to  do  all  the  necessary  things  in  the  ordinary 
management  of  the  ship.  We  do  not  for  a  moment 
desire  to  be  placed  in  the  position  of  condemning 
the  Chinese  race  as  sailors.  We  are  not  trj^ing 
to  defeat  this  limitation  of  liability  on  the  ground 
merely  that  this  crew  was  a  Chinese  crew.  We 
are  defending  on  the  ground  that  THIS  PAR- 
TICULAR CREW  WAS  NOT  SUFFICIENT  TO 
COPE  WITH  THE  EMERGENCY  in  which  the 
ship  was  placed,  an  emergency  most  likely  to  arise, 
and  one  against  which  the  ship  had  made  all  prop- 
er preparations  in  the  way  of  life-sa\dng  appli- 
ances;   had  provided  everything  except  the  crew 


27 

which  was  to  make  the  appliances  efficient.  Now, 
the  crew,  when  it  left  the  port  of  Honolulu,  did 
not  comply  with  the  requirements  of  Section  -I-IGS 
of  the  R.  S.  If  they  had  been  trained  between 
Honolulu  and  San  Fracisco  in  the  lowering  of 
boats  so  that  with  their  Chinese  imitativeness  they 
had  been  able  to  lower  them  under  the  direction 
of  their  fellow-Chinamen,  without  the  command 
of  their  white  officers,  the  organic  insufficiency 
might  have  been  remedied,  but  the  evidence  is  ab- 
solutely conclusive  that  they  had  never  been  so 
trained.  The  insufficiency  existing  at  the  time  of 
leaving  the  port,  never  having  been  remedied  up 
to  the  time  of  the  disaster,  the  owners  come  within 
the  rule  laid  down  in  The  Annie  Faxon  and  must 
find  themselves  deprived  of  the  right  to  limit  their 
liability  b}"  their  failure  to  comjjly  with  the  U.  S. 
Statute. 

It  would  be  sufficient  for  us  to  rest  our  argument 
at  this  point  and  to  say  that  the  burden  resting 
on  them  as  petitioners  had  not  been  sustained  be- 
cause, in  the  language  of  Judge  Clifford,  they  have 
failed  to  show  "that  the  fault  could  not  have  been 
one  of  the  causes  of  the  loss  of  life."  Although 
we  might  rest  here,  we  are  able  to  go  a  step  fur- 
ther than  we  are  required  to  do  and  to  show  from 
the  evidence  that  the  captain  was  informed  by  the 
pilot  as  soon  as  the  ship  struck  that  they  were  go- 
ing to  sink;    that  he  immediately  gave  the  signal 


28 

to  the  boats,  that  it  took  twenty  minutes  tor  the 
ship  to  sink,  that  it  took  but  five  minutes  for  a 
properly  trained  crew  to  lower  all  the  boats,  two 
minutes  some  of  the  officers  testified,  and  that  at 
the  end  of  the  twenty  minutes  but  three  of  the 
eleven  boats  had  been  put  over  the  side  of  the 
ship ;  that  two  of  them  were  swamped  in  a  smooth 
sea;  that  the  third,  which  was  successfully 
launched,  was  launched  by  two  of  the  white  offi- 
cers and  that  when  it  got  away  it  had  but  three  pas- 
sengers and  two  white  members  of  the  crew,  and 
no  Chinamen.  The  evidence  shows  that  in  these 
twenty  minutes,  during  which  the  ship  sank  on 
an  even  keel,  with  a  list  at  no  time  greater  than 
ten  degrees,  in  a  smooth  sea,  with  boats  perfectly 
equipped  for  the  saving  of  the  passengers,  with  all 
the  bearings  oiled,  the  blocks  and  taclde  in  per- 
fect condition,  but  three  passengers  were  taken 
from  the  ship  in  boats  by  the  time  she  had  gone 
down.  The  evidence  shows  that  there  was  no  con- 
fusion on  the  part  of  the  passengers  which  in  any 
\'7aj  interfered  with  the  lowering  of  the  boats,  and 
it  further  shows  that  the  Chinamen  as  a  matter  of 
fact  did  come  to  many  of  the  boats  and  make  such 
futile  attempts  to  lower  them  as  they  could.  Every 
element  that  possibly  could  have  contributed  to  the 
successful  lowering  of  those  boats  and  getting 
those  passengers  off  existed,  with  the  single  excep- 
tion of  a  crew  that  had  been  trained  to  handle  the  ■ 


29 

appliances,  and  which  could  understand  the  com- 
mands of  the  officers  in  such  an  emergency. 

We  will  show  from  the  evidence  the  following 
facts : 

1.  That  the  members  of  the  crew  in  the  deck  de- 
partment (sailors),  of  the  .engineers'  department, 
and  of  the  fireroom,  were  Chinese  who  could  not 
understand  English,  and  that  the  officers  could 
not  speak  Chinese,  nor  any  language  that  the  Chi- 
nese could  understand,  and  that  all  the  commands 
were  either  by  gesture  or  through  two  interpreters. 

2.  That  the  men  were  so  widely  separated  from 
their  officers  that  the  second  officer  in  charge  of 
the  deck  department  did  not  know  the  names  of 
any  one  of  the  sailors  under  his  immediate  com- 
mand, and  that  a  quartermaster  could  not  name 
four  out  of  the  eighty-five  Chinamen  on  the  ship. 

3.  That  there  never  had  been  a  boat  drill  for 
the  crew,  that  the  boats  in  the  chocks  had  not  been 
lowered  for  many  months,  and  that  the  only  drill 
in  the  ship  was  fire  drill,  where  the  crew  merely 
assembled  by  the  boats  and  did  not  touch  them. 

4.  That  at  the  time  of  the  sinking  of  the  ship 
it  was  dark,  that  the  ship  sank  on  an  even  keel, 
and  that  the  water  was  smooth. 

5.  That  the  apparatus  for  launching  the  boats 
was  in  perfect  condition,  and  that  there  was  no 


30 

panic  on  the  part  of  tlie  passengers  to  interfere 
with  the  crew. 

6.  That  it  would  not  have  taken  more  than  five 
minutes  to  lower  these  boats  from  the  chocks ;  the 
majority  of  the  officers  estimating  that  it  would 
have  taken  from  two  to  four  minutes. 

7.  That  the  signal  to  lower  boats  was  given  as 
soon  as  the  ship  struck. 

8.  That  the  ship  was  twenty  minutes  in  sink- 
ing. 

9.  That  the  Chinese  were  known  to  have  de- 
serted at  least  one  of  the  boats. 

10.  That  but  one  boat  was  successfully 
launched,  the  starboard  after-quarter  boat,  and  that 
by  the  carpenter  and  Officer  Coghlan  personally, 
and  with  their  own  hands. 

11.  That  but  two  other  boats  were  gotten  over 
the  side  of  the  ship,  one  of  which  was  swamped  in 
a  smooth  sea  by  the  unpracticed  handling  of  the 
falls  by  a  Chinaman,  and  the  other  gotten  off  so 
tardily  that  it  was  swamped  as  the  ship  went 
down;    and  finally, 

12.  That  but  three  passengers  were  taken  from 
the  ship  in  the  life  boats. 

In  support  of  our  main  proposition  that  the 
Chinese  could  not  understand  the  language  of  their 
officers,  and  that  there  was  no  medium  of  commu- 


31 

nication  between  officers  and  men  sufficient  to  cope 
with  an  emergency  requiring  the  lowering  of  the 
boats,  we  offer  the  very  highest  testimony  obtain- 
able.    On  this  point  we  have  the  depositions  of 
nineteen   of  the  survivors  of  the  Chinese  crew. 
Eight  of  these  were  members   of  the   deck  de- 
partment, called  on  board  the  ship  sailors,  and 
half  the  total  number  in  whose  special  charge  were 
supposed  to  be  the  launching  of  the  eleven  life- 
boats.   The  remainder  are  firemen  and  coal  pass- 
ers, each  of  whom  had  a  necessary  function  to  per- 
form in  the  launching  of  the  boats.     Their  testi- 
mony was  interpreted  by  Soo  Hoo  Fong,  the  in- 
terpreter of  the  Pacific  Mail  Steamship  Company, 
and  John  Conception,  who  acted  for  the  claimant, 
Sarah   Guyon.     The  witnesses  were  sequestered 
and  examined  separately,  and  there  is  not  a  ma- 
terial discrepancy  in  the  entire  nineteen  deposi- 
tions.    These  are  the  same  Chinamen  that  we  peti- 
tioned your  Honor  to  have  examined  before  your- 
self acting     as     Commissioner.     We  have  since 
learned  to  our  regret  that  this  was  perhaps  an  im- 
propriety, though  we   feel  an  equal  regret  that 
your  Honor  did  not  see  with  your  own  eyes  how 
hopeless  a  task  it  would  have  been  to  have  at- 
tempted the  launching  of  those  eleven  life  boats 
on  that  dark  morning  with  men  who  could  not  un- 
derstand the  simplest  question  concerning  the  ship, 
whether  addressed  in  English  or  that  jiigeori  Eiig- 


32 

lish  with  which  we  of  this  coast  are  more  or  less 
familiar. 

Not  only  is  the  Chinese  testimony  absolutely 
convincing  in  itself,  but  it  is  not  contradicted  by 
a  single  white  officer  of  the  "Rio."  Second  Officer 
Coghlan,  the  highest  surviving  officer  of  the  ship; 
Third  Officer  Holland,  the  next  in  command ;  En- 
gineer Herlihy  and  Quartermaster  Lindstrom,  all 
testified  at  length  as  to  the  condition  of  the  vessel 
and  crew,  and  not  one  of  them  denies  these  asser- 
tions of  the  Chinamen.  In  view  of  the  fact  that 
this  was  the  very  question  at  issue  in  the  case,  the 
exact  ground  set  forth  in  our  several  answers  for 
contesting  the  limitation  of  the  company's  liability, 
this  silence  of  the  company's  own  officers  and  wit- 
nesses, must  be  regarded  as  an  admission  that  the 
Chinamen's  testimony  portrays  accurately  the  con- 
dition of  affairs  on  the  ship  on  that  dark  morning 
when  the  whistle  was  blown  to  man  the  boats. 


33 
I. 

The  members  of  the  crew  of  the  deck  department  (sailors), 
of  the  engineer's  department  and  of  the  fireroom,  constitut- 
ing all  the  crew,  save  the  cabin  boys,  were  Chinese  who 
could  not  understand  English.  The  officers  could  not 
speak  Chinese  nor  any  language  that  these  Chinamen  could 
understand.  All  the  commands  were  either  by  gesture  or 
through  two  interpreters. 

FUNG  PING    (Deposition,  p.   13). 

Q.     Were  you  employed  on  the  Kio  when  she  sank? 

A.     Yes,   sir. 

Q.     "What  is  your  business?  A.     Sailor. 

Q.     Do  you  speak  English?  A.     No,  sir;    I  do  not. 

Q.     Do  you  understand  English?  A.     No,  sir. 

Q.     How  did  you  get  your  orders  on  the  Eio? 

A.     The  boatswain  gave  me  the  orders. 

(p.  14.)     Q.     Do  any  of  the  rest  of  the  sailors  other  than  the 

boatswain  speak  English? 

A.     The  boatswain  is  the  only  one  who  speaks  English. 

Q.     Do  you  live  with  the  sailors  on  board  of  the  ship? 

A.     Yes,  sir. 

Q.     Did  you  ever  hear  any  one  of  them  speak  English?     Other 

than  the  boatswain?  A.     No,  sir. 

LOW    YOW    (Deposition,    p.    16). 

Q.     Do  you  understand  English?  A.     I  do  not  understand  it. 

Q.     Do  you  understand  pigeon-English?         A.     No,  sir;  I  do  not. 
Q.     Were  you  on  the  Rio  when  she  sank?  A.     Yes,  sir. 

(p.  17.)     Q.     How  do  you  get  your  orders  on  the  ship? 
A.     The  boatswain  gives  me  the  orders. 

Q.  DID  YOU  EVER  TAKE  ANY  ORDERS  DIRECTLY 
FROM  THE  WHITE  PEOPLE  SPOKEN  IN  ENGLISH? 
A.  HE  HAS  GOT  TO  DIRECT  UIM  BY  HAND,  BY  SIGNS. 
BUT  I  COULD  NOT  UNDERSTAND  WHAT  THE  WHITE 
OFFICER  WOULD  TELL  ME.  I  GENERALLY  GOT  MY  OR- 
DERS FROM  THE  BOATSWAIN. 

HOE  SING  (Deposition,  p.  19). 

Q.     Do  you  understand  English?  A.     No,  sir. 

Q.     Were  you  employed  on  the  Rio  at  the  time  she  sank? 


34 

A.     Yes,  sir;    I  was  on  the  Eio. 

Q.     What    was    your    employment    there!  A.     Sailor. 

Q.     How  long  had  you  been  on  the  Eio? 
A.     Just  from  Hongkong  here  the  last  trip. 
Q.     Did  the   boatswain  speak  English?  A.     Yes,  sir. 

Q.     Do  the  rest  of  the  sailors  speak  English? 

A.     Only  the  boatswain,  he   is  the   only  one   who  knows  how  to 
speak  English;    the  rest  don't  know  how  to  speak  it. 
Q.     How  do  you  get  your  orders  on  the  ship? 
A.     The   boatswain   gives   us   our   orders. 
Q.     Did  you  ever  get  any  orders  from  the  white  officers? 
A.     The  white  officers  never  gave   us  any  orders  except  through 
the  boatswain. 

(p.  21.)  Mr.  McAllister  (through  his  own  interpreter)  — 
Q.  Did  you  not  tell  me  that  some  of  the  crew  could  speak  a  lit- 
tle English? 

A.     These  three  men,  the  chief  men— the  boatswain  and  the  fire- 
men and  the  cook— they  talk  English,  but  those  that  are  at  work 
in  the  different  departments,  they  understand  a  little. 
Mr.   DENMAN— Q.     Can  those   who   understand   a   little,   under- 
stand IF  THEY  ARE  NOT  ASSISTED  WITH  GESTURES? 
A.     IT  IS  DONE  BY  GESTURES  MORE  THAN  BY  SPEECH. 

WONG   HEY^    (Deposition,    p.   22). 

(After    asking   questions    in    English.)      Q.     Do    you    understand 

English?  A.     I  know  a   few  words. 

•Q.     Do   you   understand   the   words   I   asked  you   just   now? 

A.     I  knew  about  two  words  of  what  you  said. 

•Q.     Were  you  on  the  Rio  when  she  sank?  A.     Yes,  sir. 

Q.     How  long  had  you  been  employed  on  the  Rio? 

A.     Four   months. 

<J.     As   a  sailor?  A.     Y'es,   sir;     as  a  sailor. 

CUM  CHEE   (Deposition,  p.  26). 

Q.  Do  you  understand  English?  A.     No,  sir. 

Q.  How  did  you  get  your  orders  on  the  Eio? 

A.  The  boatswain  gave  us  the  orders. 

-Q.  Did  the  white  officers  ever  give  you  any  orders? 

A.  The  white  officers  never  gave  us  any  orders. 

YUNG  SING    (Deposition,  p.   27). 

Q.     How  many  sailors  are  there  on  the  Rio?  A.     Sixteen. 

■Q.     And  besides  that  the  two  boatswains? 


35 

A.     Twenty-one    altogether,    counting   the   boatswain,    the   second 

boatswain,  porter,  the  one  that  looks  after  the  mess,  and  the  one 

that  looks  after  the  latrines. 

Q.     How  many  of  these  can  speak  English? 

A.     None  of  them  except  the  boatswain. 

CHAU  SING   (Deposition,  p.  28). 

Q.     Do  you  understand  English?  A.     No,  sir. 

Q.     What  is  your  occupation"?  A.     Sailor. 

Q.     Were  you  employed  on  the  Eio  at  the  time  she  sank? 

A.     Yes,   sir.      (p.   29.) 

Q.     Did  the  white  officers  ever  give  you  any  orders  directly? 

A.     When  the  mate  gives  me  orders,  or  any  of  the  white  officers  I 

generally  go  and  ask  the  boatswain  what  is  the  meaning  of  it. 

Q.     DID  YOU  EVER  HEAR  ANY  WHITE  OFFICER  OF  THE 

RIO,   WHO   WAS   ON    THE    RIO   WHEN    SHE    SANK,    WHO 

COULD  SPEAK  CHINESE? 

A.     NO,  SIR;    NONE  OF  THEM  COULD  SPEAK  CHINESE. 

CHAN  KIU  (Deposition,  p.  31). 

Q.     Do  you  understand  English?  A.     No,  sir. 

Q.     What  is  your  occupation?  A.     Sailor. 

Q.     Were  you  on  the  Rio  when  she  sank?  A.     Yes,  sir. 

Q.     How  many  voyages  have  you  made  on  the  Rio? 
A.     Two   voyages. 

(p.   32.)     Q.     Did  you   ever  hear  any  of  the   rest   of  them   talk 
English?  A.     No,    sir. 

Q.     Did  you  ever  see  any  of  the  rest  of  them  obey  orders  given 
in   English? 

A.     They  always  got  orders  from  the  boatswain,  never  got  them 
directly  from  the  white  officers. 

Q.     WHO  ELSE  ON  THE  SHIP  COULD  SPEAK  BOTH  ENG- 
LISH AND  CHINESE? 

A.     ONLY   THE    BOATSWAIN   AND   THE   CHIEF   OF    THE 
FIREMEN   COULD   SPEAK   ENGLISH   AND   CHINESE. 

PUNG  WAH   (Deposition,  p.  5). 

Q.     What  is  your  employment? 
A.     SECOND  BOATSWAIN. 

Q.     How  long  have  you  been  employed  on  the  Rio? 
A.     Two   months   on  the   Rio. 

Q.     How  long  have  you  been  employed  in  the  Pacifn!   Mail  Com- 
pany? A.     One  year. 


36 

Q.     Were  you  a  sailor  on  the  Eio  at  the  time  she  sank! 

A.     Yes,    sir, 

Q.     Do  you  understand,  or  can  you  speak  the  English  language? 

A.     I  know  a  few  words,  that  is  all. 

Q.     How  did  you  get  your  orders  on  the  ship? 

A.     The  first  boatswain. 

Q.     When  in  the  duty  of  launching  boats  on  the  ship,  did  you  get 

your  orders  from  the  chief  boatswain? 

A.     Yes,   sir;     the   chief   boatswain  tells   us. 

Q.     Is  that  the  only  person? 

A.     Yes,   sir;     the   chief   boatswain   tells   me. 

Q.     Is  he  the  only  person  who  tells  you? 

A.     Yes,  sir;    the  chief  boatswain  is  the  only  man  who  gives  the 

orders. 

Q.     How  many  chief  boatswains  are  there  on  the  ship? 

A.     There  are  two   boatswains  on   a  ship. 

Q.     How  many  life  boats  are  there  on  a  ship?  A.     Eleven. 

Q.     How  many  in  the  deck  department  can  speak  English? 

A.     None  of  them. 

Q.     Do  the  chief  boatswains  speak  English?         A.     Yes,  sir. 

Q.     THEN    WHEN    YOU    SAY    NONE    OF    THE    DECK    DE- 

PAETMENT  SPEAK  ENGLISH  YOU  MEAN  OTHER  THAN 

THE    CHIEFS? 

A.     YES,    SIE.      THE    CHIEF   BOATSWAIN   IS    THE    ONLY 

MAN. 

Q.     The  chief  boatswains.     They  are  the  only  two? 

A.     Yes,  sir. 

Q.     How  many  sailors  are  there  in  the  deck  department? 

A.     Fifteen  with  the  two  boatswains. 

Q.     On  the  Eio?  A.     Yes,  sir. 

Coal  Passeks  and  Firemen. 

LEON  PAK   (Deposition,  p.  4). 

Q.     Do  you  speak  English?  A.     No,  sir. 

Q.     Do  you  understand  the  English  language?  A.     No,  sir. 

(p.  5.)      Q.     Who  is  the  chief  man  of  the  coal  passers? 
A.     Cock  Ning  is  the  name  of  the  chief  fireman. 
Q.     Can  any  one  else  besides  the  chief  coal  passer  speak  English  T 
A.     Only  the  chief  fireman  knows  English. 

Q.     Can  any  of  them  understand  English  besides  the  chief  fire- 
man? 
A.     They  don't  quite  understand,  but  they  just  merely  do  some- 


37 

thing— the   engineer   sometimes   tell   them,   and   they   just   under- 
stand sometimes,  and  other  times  they  do  not. 
Q.     CAN   THEY  UNDERSTAND  IF   THE   ENGINEER  DOES 
NOT   POINT   OUT   \\1TH   A   GESTURE? 

A.     NO,  SIR;    HE  WILL  HAVE  TO  POINT  OUT  THE  DIF- 
FERENT THINGS. 


FOOK  SING   (Deposition,  p.  41). 

Q.     What   is  your  employment?  A.     Second  fireman. 

Q.     Do  you  speak  English? 

A.     I  know  only  those  things  concerning  the  engine-room. 

Q.     Do  you  know  anything  concerning  the  lifeboats  in  English? 

A.     No,  sir;    I  do  not. 

Q.     Do    you    know    anything    concerning    the    life    preservers    in 

English?  A.     I  do   not. 

(p.    42.)      Q.     DID    YOU    KNOW    THE    OTHER    FIREMEN 

UPON   THE   RIO   WHEN   SHE   SANK? 

A.     YES,    SIR;     I    KNEW    THEM    ALL. 

Q.     DID    THEY    UNDERSTAND    ENGLISH    OTHER    THAN 

THE   CHIEF   FIREMAN? 

A.     ONLY   THE   CHIEF   FIREMAN. 

There  are  seven  more  depositions  of  Chinamen, 
similar  to  the  above. 


.'302.' JHv' 


38 
II. 

The  men  were  so  widely  separated  from  their  officers  tnat 
the  second  officer  of  the  ship,  in  charge  of  the  deck  de- 
partment, did  not  know  the  name  of  a  single  one  of  the 
sailors  under  his  immediate  command,  and  a  quarter- 
master could  not  name  four  out  of  the  85  Chinamen  on  the 
ship. 

SECOND   OFFICEE   COGHLAN    (p.   58). 

Q.     "What  are  the  names  of  the  Chinamen  who  should  have  been 

at  that  boat?  A.     I  do  not  remember  that  now. 

Q.     Give  me  the  names  of  some  of  them  in  your  department  that 

should  have  been  at  those  boats. 

A.     I  could  not  give  you  the  names  of  them.,  I  do  not  know  the 

names. 

QUAETEEMASTEE  LINDSTEOM    (p.   83). 

Q.     You  say  that  you  were  quartermaster  on  this  ship— for  how 

many  years   did  you  say? 

A.     I   was  not   quartermaster  all   of  the  time. 

Q.     How   long  were  you   on  the  ship?  A.     Twelve   months. 

Q.     You  could  name  only  four  of  the  Chinese  crew  by  name? 

A.     I  do  not  say  I  could  name  four  by  name,  THEY  CHANGE 

THEM  ALL  THE  TIME;    about  eight  of  them  were  on  the  ship 

aU  the  time  I  was  on  it. 


III. 

There  never  had  been  a  boat  drill  for  the  crew.  The  six 
boats  in  the  chocks  had  not  even  been  moved  for  several 
months  and  the  only  drill  en  the  ship  was  fire  drill  where 
the  crew  merely  assembled  by  the  boats  and  did  not  touch 
them. 

THIRD   OFFICER   HOLLAND    (p.   126). 

"WE   NEVER  LIFTED   THEM   OUT   OF   THE   CHOCKS  AT 
FIRE   DRILLS." 

FUNG  PING,  Sailor   (Deposition,  p.  13). 

Q.     Did  you  ever  see  a  boat  drill  on  the  Riof 
A.     No,  sir;    I  have  not  seen  a  boat  drill.      (Through  Soo  Hoo 
Fong,  as  interpreter.)     On  the  deck  but  not  in  the  water. 
Mr.  DENMAN— Q.     \Vhat  did  he  say  about  the  deck! 
Interpreter    Conception— ALL    THE^   DO    IS    TO    STAND    BY 
THE  BOATS,  HE  SAYS.     You  wanted  to  find  out  whether  the 
boats  were  lowered. 

Mr.  DENMAN.     Ask  him  if  the  boats  are  lowered. 

A.     No,  sir. 

Q.     How  long  have  you  been  on  the  Rio?  A.     Four  months, 

Q.     DID  YOU   EVER  SEE   THE   BOATS  LOWERED  WHILE 

YOU  WERE  ON  THE  RIO? 

A.     NO,   SIR. 

LOW  YOU,   Sailor    (Deposition,   p.   16). 

Q.  How  long  have  you  been  employed  on  the  Rio? 

A.  Four   months. 

Q.  Did   you   ever   see   fire    drill    on   the   Rio    in   that   time? 

A.  Yes,   sir. 

Q.  Did  you  ever  see  boat  drill  on  the  Rio  during  that  timef 
A.  I  HAVE  SEEN  FIRE  DRILLS  AND  I  HAVE  SKEX  A 
KIND  OF  BOAT  DRILL;  WHEN  TIIEY  WERE  THROUGH 
WITH  THE  FIRE  DRILL,  THEY  ALL  GO  TO  THE  BOATS, 
WHAT  THEY  CALL  GOING  TO  THE  BOATS,  BUT  I  HAVE 
NEVER  SEEN  THE  BOATS  LOWERED  TO  THE  WATER. 
Q.  Have  you  ever  seen  the  boats  lifted  out  of  the  <'hock»  so 
that  they  extended  over  the  side  of  the  ship? 


40 


A.     Yes,  sir;    I  have  seen  some  of  them. 

Q.     Were  they  the  quarter-boats?  A.     Yes,  sir. 

Q.     Was  it  ever  done  ou  the  other  boats'? 

A.     It   was   the   quarter-boats   that   were   generally   out    and   the 

other  boats  were  never  put  out. 

HOE    SING,    SaUor    (Deposition,   p.    19). 

Q.     Did  you  ever  attend  fire  drill  on  the  Eio?  A.     Yes,  sir. 

Q.     Did  you  ever  attend  boat  drill  on  the  Rio?  A.     No,  sir. 

Q.     Did  you  ever  see  any  of  the  boats  of  the  Rio  lowered  over 
the  side  of  the  ship  other  than  the  quarter-boats? 
A.     No,  sir;    I  have  never  seen  any  of  the  boats  lowered. 

WONG  HEY,  Sailor   (Deposition,  p.  24). 

Mr.  DENMAN— Q.     Did  you  ever  see  fire  drill  on  board  the  Bio? 

A.  Yes,  sir. 

Q.  Did  you  ever  see  boat  drill  on  board  the  Rio? 

A.  I  have  never  seen  a  boat  drill. 

CUM  GHEE,  Sailor   (Deposition,  p.  25). 

Q.     Did  you  ever  see  a  boat  drill  on  the  Rio?  A.     No,  sir. 

YUNG  SING,   Sailor    (Deposition,  p.   27). 

Q.     Did  you  ever  see  a  boat  drill  while  you  were  on  the  Rio  where 

all   the   boats   were   lowered? 

A.     I  never  saw  one  where  all  the  boats  were  lowered. 

CHOW  SING,  Sailor   (Deposition,  p.  28). 

Q.     Did  you  ever  see  a  boat  drill  on  the  Rio?  A.     No,  sir. 

Q.     How  long  have  you  been  on  the  Rio? 
A.     About   two   trips. 

PUNG  WAH,  Second  Boatswain  (Deposition,  p.  9). 

(Examined    through    Soo    Hoo    Fong,    petitioner's     interpreter.) 
Mr.  McAllister— Q.     Did  you  ever  have  boat  drill  in  Hong- 
kong when  you  were  lying  in  Hongkong?  A.     No,  sir. 
Q.     Did  you  ever  have  a  boat  drill  while  you  were  on  the  Rio? 
A.     No,    sir. 


41 


Q.     What  is  a  boat  drill! 

A.     I  KNOW  WHAT  IS  THE  LOWERING  OF  THE  BOATS, 

BUT    I    HAVEN'T    SEEN    THAT    ON    THE    RIO.      I    HAVE 

•SEEN   IT    ON    OTHER    SHIPS. 

Q.     Never  saw  it  on  the  Rio  in  Hongkong? 

A.     No,  sir;     I  never  saw  it   in  Hongkong, 

Q.     Did  you  ever  see  any  of  those  boats  lowered  into  the  water! 

A.     Yes,   sir. 

Q.     When?  A.     On  the  Chinese  coast. 

q.     Boats    of   the    Rio?  A.     No,    sir. 

Q.     You  say  you  saw  them  lowered  on  the  Chinese  coast.     Were 

they   boats   of   the   Rio?  A.     Some   other   ships. 

Q.     THEN   YOU   HAVE   NEVER   SEEN   THE    LIFE    BOATS 

OF   THE   RIO  LOWERED  INTO   THE   WATER? 

A.     YES,  SIR;    I  SAW  THE  BOATS  LOWERED  DOWN. 

<^.     Where  did  you  see  them  lowered  down? 

A.     I   saw  them   lowered   down. 

Q.     WHEREABOUTS,    AT    HONGKONG,    OR    AT    SEA,    OR 

WHERE? 

A.     JUST  LIKE  HERE   (showing)   WHEN  THE  SHIP  SANK. 

FOOK  SING,  Second  Fireman   (Deposition,  p.  43.) 

(Examined  through  Soo  Hoo  Fong.) 

Mr.   McAllister— Q.     Did   you   ever   see   a   boat   drill   on   the 

Rio? 

Mr.   DENMAN.     The   same   objections. 

A.     I  never  saw  no  boat   drill   on  the  ship. 

Mr.  DENMAN.     I  withdraw  all  my  objections. 

There  are  nine  other  depositions  of  Chinamen, 
similar  to  the  above. 


42 
IV. 

At  the  time  of  the  sinking  of  the  ship  it  was  very  dark,  that 
the  ship  sank  on  an  even  keel  and  that  the  water  was 
smooth. 

THIRD  OFFICER  CHARLES  HOLLAND    (p.   74). 

Q.     You  do  not  know  whether  your  own  crew  reported  to  its  own 
boat;    you  cannot  swear  to  that? 

A.     It  was  dark  and  I  could  not  swear  to  that,  T  COULD  NOT 
SEE   IF  IT   WAS  MY  OWN   CREW;     IT   WAS   DARK. 

SECOND    OFFICER    COGHLAN    (p.    137). 

Q.     That  is  all  you  know  about  the  conduct  oT  the  crew  on  that 

day? 

A.     Y^'es,  sir;    I  went  right  down  to  the  boat  and  came  up  again; 

IT  WAS  TOTAL  DARKNESS. 

PILOT    JORDAN     (p.    28). 

Q.  What  was  the  condition  of  the  sea  at  that  time! 

A.  Smooth. 

Q.  Was   there   any  perceptible  list  to  the  ship? 

A.  Down  by  the  head,  there  was  not  any  list. 

Q.  Not  enough  to  interfere  with  the  launching  of  the  boats? 

A.  No,  the  ship  was  upright  all  the  time. 

CHIEF   ENGINEER   HERLIHY^    (p.    116). 

Q.     Was  there  any  sea  running? 
A.     No,  sir;    it  was  smooth. 


43 
V. 


The  apparatus  for  launching  the  boats  was  in  perfect  condi- 
tion. 

SECOND   OFl'ICEE   COGHLAN    (p.   61). 

Q.  You  say  that  the  eqiiipment  of  the  life  boats  was  perfect? 

A.  Yes,  sir. 

Q.  The  blocks  were  oiled? 

A.  They  were  all  in  working  order. 

Q.  Everything   was   in   working   order?  A.     Yes,   sir. 

VI. 

It  would  not  have  taken  more  than  five  minutes  to  lower  all 
the  boats  from  the  chocks;  the  estimates  of  the  officers 
running  from  two  to  five  minutes  for  getting  the  boats  into 
the  water  after  the  signal  to  abandon  the  ship. 

THIRD  OFFICEE  HOLLAND  (p.  126). 

Q.     Do  you  desire  to  swear  to  that  as  an  expert  that  it  will  take 
five  minutes  for  a  well-drilled  crew  to  do  that? 
A.     Not  more  than  that. 

Q.     Do  you  think  it  will  take  that  much?  A.     No,  sir. 

Q.     HOW  LONG  WOULD  IT  TAKE  THE  CREW? 
A.     YOU  CAN  DO  IT  IN  TWO  MINUTES. 

Q.     That  is  to  say  about  two  minutes  after  the  blowing  of  the 
whistle? 

A.     We  never  lifted  them  out  of  the  chocks  at  the  fire  drills. 
Q.     The  men  were  there  and  could  have  lifted  them  out  two  min- 
utes after  the  whistle  was  bk)wn? 
A.     IT  COULD  HAVE  BEEN  DONE;   YES. 
Q.     AND  THAT  IS  WHAT  WOULD  HAVE  BEEN  DONE  IF 
YOU  HAD  COMPLETED  YOUR  FIRE  DRILL  AND  TURNED 
IT  INTO  A  COMPLETE  BOAT  DRILL  AND  LOWERED  THE 
BOATS? 
A.     YES,    SIR. 

(p.   128.)      Mr.   DENMAN.     The   deposition   of   Charlea   Holland 
on  pages  7,  8  and  9  thereof,  is  here  offered. 
THE  COURT.     The  portion  just  read  to  the  witness? 
Mr.  DENMAN.     The  portion  read  to  the  witness,  on  pages  7,  8 
and  9  thereof. 


44 

FRANK  CRAMP,  Carpenter    (Deposition  p.  40). 

Q.     Then  you  went  to  boat  No.   10?  A.     Yes,  sir. 

Q.     And  you  lowered  her  away?  A.     Yes,  sir. 

Q.     How  long  did  it  take  to  lower  her  away? 

A.     Not   a  minute. 

Q.     That  is  what  any  of  the  boats  could  be  lowered  in? 

A.     No,   sir;     all   the   boats   could   not   be   lowered   in  that   time, 

because  some  of  the  boats  had  to  be  lifted  up  and  taken  out  of 

the   chocks. 

Q.     How  long  would  it  take  to  lift  them  out  of  the  chocks  and 

swing  them  over  the  side? 

A.  THREE  OR  FOUR  MINUTES  TO  SWING  THEM  OUT. 

Q.     What  did  you  have  to  do  to  swing  them  out? 

A.     You  would  have  to  shove  them  out,  swing  one  davit  around, 

bring  the  other  around,  and  put  them  over  the  sides. 

Q.     Was  this  Chinese  crew  well  drilled? 

A.     As   far   as  the   drilling   went,   WE   NEVER   SWUNG   THE 

BOATS   OUT   IN   BOAT   DRILI.S. 

Q.     You  have  to  lift  the  boat  up,  how  far? 

A.     At  least  six  inches. 

Q.     How  long  would  it  take  to  do  that,  half  a  minute? 

A.     Possibly  a  minute  to  get  that  boat  up  and  the  chocks  out. 

Q.     Have  you  ever  done  this?  No,  sir;    I  have  not. 

Q.     This   is   just   your   opinion? 

A.     Just  my  opinion  that  I  am   giving. 

SECOND  OFFICER  COGHLAN    (p.  50). 

Q.     Did  yon  ever  see  any  of  those  boats  lifted  from  the  chocks 

at  any  time  within  sis.  months  prior  to  the  sinking  of  the  Eio. 

A.     Yes,  sir. 

Q.     You  are  certain  of  that? 

A.     I  THINK  I  did. 

Q.     How  long  did  it  take  to  do  it? 

A.     I  do  not  know  about  that;    I  could  not  say;    not  a  very  long 

time  at    all,  because  the  gear  was    all    there.     The  boats  wer« 

hooked  on;    they  simply  had  to  be  lifted  up  at  either  end  of  them. 

It  was  only  a  matter  of  a  few  minutes '  time. 

Q.     Just  lifted  the  boats  out  of  the  chocks,  pushed  them  out  and 

dropped  them  down?  A.     That   is  all. 

Q.     How   long   would   it   take? 

A.     Five  minutes  to  lift  them  up  and  drop  them  down. 


45 
VII. 

The  signal  to  lower  the  boats  was  given  as  soon  as  the  ship 

struck. 

PILOT  JORDAN   (p.  18). 

Q.     When   she   struck,    Captain   Jordan,    did   you   think   she   was 

going  to  sink? 

A.     YES;     I   TOLD   THE   CAPTAIN   SO. 

SECOND  OFFICER  COGHLAN    (p.  41), 

Q.     At  that  time  the  signals  to  go  to  the  stations  were  given? 

A.     YES,  SIR.     CAPTAIN  WARD  GAVE   THE   SIGNALS  AS 

SOON  AS  THE  SHIP  STRUCK. 

Q.     And  then  you  went  within  two  minutes  to  proceed  to   your 

station  and  you  met  the  Chief  Engineer? 

A.     It  was  not  two  minutes,  it  was  just  as  fast  as  I  could  get 

down  off  the  bridge.     I  only  met  him  a  few  steps  away  from  the 

bridge  ladder. 

(p.  48.) — Q.     Was  the  signal  for  that  drill  the  same  signal  given 

on  the  Rio  at  the  time  of  the  disaster?  A.     Yes,  sir. 


46 
VIII. 

The    ship    was    twenty   minutes    in    sinking. 

PILOT  JORDAN    (p.   18). 

Q.     How  long  in  your  judgment  was  it  after  she  struck  that  she 

sank? 

A.     I  should  judge  about  TWENTY  MINUTES. 

ENGINEER   HERLIHY    (p.    115). 

(After  three  pages  of  description  of  routine  duties  with  custo- 
mary time   for  each   duty.) 

Q.  In  view  of  all  these  things  that  occurred,  how  long  do  you 
estimate  it  took  the  ship  to  sink? 

A.  I  thought  from  all  the  time  I  was  engaged  and  the  time  she 
struck  it  might  BE  TWENTY  MINUTES,  not  more  or  less.  It 
might  be  less.  I  have  no  means  of  knowing  the  time.  I  was  not 
bothering  about  the  time. 

Q.  You  recollect  all  these  things  that  occurred  in  their  sequence? 
A.     Pretty  near;    yes. 

MRS.  KATE  WEST    (p.   120). 

Q.  Judging  by  all  these  things  which  you  did,  by  the  length  of 
time  it  took  you  to  get  your  clothes  on  originally,  the  conversa- 
tion that  you  heard  between  the  Wildmans,  the  conversation  which 
you  had  with  the  China  boy  when  he  came  out,  the  return  and  par- 
tial dressing,  the  conversation  with  Miss  Ripley;  your  going  to 
the  Captain  and  to  the  rear  of  the  boat  and  afterwards  inside  and 
on  the  deck  below;  the  going  of  Miss  Ripley  to  get  your  life 
preserver,  and  return ;  the  conversation  about  putting  on  the  life 
preserver  and  the  attempt  to  do  so,  and  the  final  going  to  the  boat 
that  you  were  saved  in,  how  long  would  you  say  it  was  from  the 
TIME  THAT  THE  LIGHTS  WENT  OUT  UNTIL  THE  SHIP 
WENT  DOWN? 

A.     I  could  not  tell,  I  did  a  good  many  things. 
Q.     About  how  long  would  you  say? 
A.     I   SHOULD   SAY   ABOUT   FIFTEEN   MINUTES, 
(p.    17.)— Q.     Pilot    Jordan,    after    she    struck,    did    the    electric 
lights   go   out?  A.     In   a   few   minutes,   yes,   sir. 

Q.     How  many  minutes   do  you  think  it  was? 
A.     ABOUT  FIVE  MINUTES  I  suppose,  or  probably  less  than 
that. 


47 

B.  H.  LONG   (p.  106). 

Q.  How  long  do  you  think  it  took  you  altogether  from  the  time 
that  the  vessel  struck  till  you  came  up  on  deck  the  second  time, 
after  having  gone  down  and  packed  your  clothes  and  come  up 
again  and  gone  down  and  got  your  life  preserver,  and  then  re- 
turned t 

A.     I  should  judge  from  twelve  to  tifteen  minutes ;    that  is  what  I 
would  put  it   at   from  the  time   that   I  went   and  what   I  did. 
(After  this  Mr.  Long  heard  the  two  conversations  between  First 
Officer  Johnson   and  the   Quartermaster,   and  himself  and   Harry 
Guyon.) 


48 
IX. 

That  the  Chinese  were  known  to  have  deserted  at  least  one 
of  the  boats. 

K.  H.  LONG   (pp.  107  and  108). 

Q.     Who  else  was  on  deck  when  you  came  up  the  second  time? 
A.     Just  as  I  came  up  on  deck — they  met  just  as  I  came  on  deck 
— the  First  Officer,  Mr.  Johnson — I  have  learned  his  name  since 
— then — and  one  of  the  quartermasters,  I  don't  know  his  name. 
Q.     Did  you  hear  any  conversation  between  those  two  regarding 
the  conduct  of  the  ship  and  the  management  of  her? 
Mr.  FOULDS— I  object  to  that  question.     Evidence  of  that  kind 
cannot  be  competent. 
THE  COUKT— I  wiU  hear  the  evidence. 

A.  The  two  men  met.  One  came  out  through  the  gangway  com- 
ing across  ship,  and  the  other  came  up  facing  me.  They  met  right 
close  to  where  I  was  standing.  The  First  Officer  asked  the  Quar- 
termaster, "WHY  ARE  YOU  NOT  AT  YOUR  POST?"  The 
quartermaster  answered,  "MY  CREW  DESERTED  ME."  That 
is  just  the  words  he  used.  They  were  standing  there  jawing  when 
the  vessel  went  down.  I  don 't  know  what  else  was  said.  They 
were  just  jawing  about  the  condition  of  things  when  the  vessel 
went  down. 


49 
X. 

That  but  one  boat  was  successfully  launched,  to  wit,  the 
starboard  after  quarter  boat,  and  that  by  the  carpenter  and 
Officer  Coghlan,  without  the  assistance  of  any  Chinese. 

SECOND  OFFICER  COGHLAN  (p.  56). 

Mr.  DENMAN— Q.     \\Tien  you  came  to  the  aft  quarter-boat  No. 

10,  how  many  men  were  there? 

A.     I  do  not  know  that  at  the  present  time;    I  think  there  were 

three  though,  but  I  am  not  positive  about  it. 

Q.     Who  lowered  the  boat? 

A.     I  lowered  one  end  of  it. 

Q.     You  as  second  officer  of  the  ship  lowered  one  end  of  it! 

A.     Yes,  sir;    and  after  it  was  lowered  I  went  down  in  it. 

Q.     Who  lowered  the  other  end? 

A.     I  could  not  say  now;    I  do  not  remember  who  it  was. 

Q.     Who  was  the  officer  regularly  in  charge  of  that  boat? 

A.     The  ship  's  carpenter. 

Q.     Why  did  you  take  from  him  the  lowering  of  the  boat? 

A.     Because  he  was  in  the  boat. 

Q.     You  assisted  in  lowering  the  boat  from  the  deck  of  the  shipt 

A.     Yes,  sir. 

Q.     Did  you  have  hold  of  one  of  the  falls  in  order  to  lower? 

A.     Yes,  sir. 

Q.     In  order  to  lower  the  boat  it  was  necessary  for  the  carpenter 

and  second  officer  of  the  ship  to  actually  engage  in  the  lowering 

of  the  boat? 

A.     WE   DID  IT. 

Q.     Why  do  you  say  that  the  crew  aU  did  their  duty  if  you  had 

to  lower  that  boat  yourself? 

A.     Well,  I  consider  myself  one  of  the  crew  of  the  ship. 


50 
XI. 

That  but  two  other  boats  were  gotten  over  the  side  of  the 
ship,  one  of  which  was  swamped  by  the  clumsiness  of  the 
Chinamen  in  handling  the  falls,  and  the  other  was  gotten 
off  so  tardily  that  it  was  swamped  as  the  ship  went  down. 

DE.   O'NEILL    (p.   85). 

Q.     Doctor,   I   wish   you  would  state   to   the   Court   in   your   own 

language  what  happened  after  she  struck. 

A.     After  the  pilot  came  to  me  and  asked  me  if  I  had  a  boat,  I 

said,  "Yes,  PORT  QJAETER  BOAT  No.  9."     *     *     *     He  got 

into  the  boat  and  lowered  it  and  let  the  aft  end  of  it  go  down 

with  a  run. 

Q.     Were  you  under  water  then,   Doctor?  A.     No,   sir. 

Q.     Did  you  get  your  boat  bailed  out?  A.     After  a  fashion. 

Q.     "Who  were  in  the  boat  at  the  time  you  were  saved,  when  you 

got  away  from  the  ship's  side? 

A.     There   were   three   men;     that   is   a   quartermaster   and   three 

sailors. 

Q.     Any  passengers?  A.     NO,  SIR. 

QUARTERMASTER  LINDSTROM  (p.  84). 

Mr.  DENMAN— Q.     This  boat  No.  9,  that  was  lowered,  did  it  fill 

with    water?  A.     Yes,    sir. 

Q.     Why   was   that? 

A.     Through  the  fall  going  down  the  run. 

Q.     Was  the  water  entirely  bailed  out?  A.     Not  entirely. 

Q.     How  much  water  was  in  it? 

A.     About  six  inches  of  water  when  we  brought  her  alongside  the 

ship. 

(p.  83.)— Q.     In  lowering  that  boat  No.  9,  what  happened? 

A.     The  after  fall  went  down  with  a  run. 

Q.     Who   was   handling  that?  A.     A   Chinaman. 

Q.     What  was  his   name?  A.     I   do   not  know. 

PILOT  JORDAN   (p.  27). 

Q.  After  the  ship  struck  what  boats  did  you  assist  in  lowering? 
A.  I  assisted  in  lowering  the  doctor's  boat.  The  after  boat  on 
the  port  side. 


51 

(p.  28.)— Q-     Was  that  boat  successfully  launched? 

A.     Yes,  sir;    that  is  it  got  in  the  water.     She  was  partially  filled, 

I  think. 

Q.     Tou    say    this    boat    was    not    successfully    launched  t 

A.     It  was  partially  filled  with  water. 

THIRD   OFFICER   HOLLAND    (p.   68). 

Q.  Which  boat  did  you  lower? 

A.  I  lowered  ONE   OF  THE   QUARTER  BOATS. 

Q.  Which  side  were  you  on? 

A.  ON   THE   STARBOARD   SIDE. 

Q.  Did  you  get  any  passengers  m  your  boat?  A.     Yes,  sir. 

Q.  How  many?  A.     Two. 

Q.  After  you  got  away  from  the  ship's  side,  were  you  able  to 

pick  up  any  more  passengers? 

A.  I  DID  NOT  GET  AWAY  FROM  THE  SHIP'S  SIDE. 

Q.  What   happened? 

A.  The  mast  or  something  fell  over  my  boat  and  smashed  it. 

Q,  WERE  YOU  ALL  THROWN  IN  THE  WATER? 

A.  YES,  SIR. 

(p.  141.)— Q.     As  far  as  your  boat  was  concerned,  there  was  only 

one  party  in  the  boat?  A,     When  the  ship  sank. 


52 
XII. 

That  but  tnree  passengers  were  taken  from  the  ship  in  boats. 

We  have  seen  that  but  three  boats  were  launched, 
No.  9,  on  the  port  side,  being  the  Doctor's  quarter 
boat,  and  Nos.  10  and  8,  on  the  starboard  side, 
officered  by  the  ship's  carpenter  and  Third  Mate 
Holland,  respectively.  Holland's  boat,  containing 
one  passenger,  we  have  seen  was  swamped  as  the 
ship  went  down;  the  Doctor's  boat,  half-filled  with 
water,  we  have  seen  was  not  baled  out  until  too 
late  to  take  any  passengers.  It  now  remains  to 
account  for  No.  10,  the  carpenter's  boat,  which  we 
have  shown  (p.  49)  was  lowered  by  Second  Officer 
Coghlan,  who  himself  held  the  falls. 

FIEST  OFFICEE  COGHLAN  (p.  140). 

Q.     You  do  not  know  who  were  in  the  boat  that  you  launched 

yourself  ? 

A.     Three  ladies  were  in  that  boat. 

(p.  37.)— Q.     Who  were  in  that  boat  that  picked  you  up? 

A.     At  that  time  there  was  the  carpenter  in  charge  of  the  boat 

and  the  main  deck  watchman  and  the  three  ladies,  and  those  are 

all  that  were  in  the  boat  at  that  time. 

These  three  ladies  constitute  all  the  passengers 
that  were  saved  from  the  ship  in  boats.  All  the 
other  passengers  who  survived  were  picked  up 
floating  in  the  water. 


53 

Now,  what  happened  in  those  twenty  minutes 
after  the  steamer  struck  ?  The  Captain  sounded 
the  signal  to  abandon  the  ship  at  once,  the  same 
signal  that  brought  the  men  to  the  lifeboats  at  fire 
drill,  when  as  we  have  been  told  the  roll  call  of  the 
boat's  crew  was  had  at  each  of  the  lifeboats  and  the 
crew  was  dismissed  without  touching  them.  AVas 
roll  called  there  in  the  fog  and  darkness  1  The  two 
officers  questioned  tell  us  that  they  could  not  name 
a  single  one  of  the  Chinamen  there  at  the  boats,  so 
we  maj^  properly  infer  it  was  not.  Common  sense 
tells  us  that  no  time  was  so  wasted,  for  the  offi- 
cers had  too  much  to  do.  They  must  teach  the  crew 
hy  gestures  in  the  darkness  how  to  lower  those 
boats.  They  must  have  at  least  one  complete  boat 
drill  before  the  ship  sank  and  they  must  begin  in 
the  drill  at  the  very  point  they  had  always  before 
left  off. 

Does  your  Honor  for  a  moment  believe  that  this 
was  attempted  throughout  that  ship?  Did  Chau 
Sing  listen  to  the  white  officer's  English  command 
to  haul  at  this  rope  and  swing  that  davit  and  knock 
out  this  chock  and  then,  as  he  tells  us  he  usually 
did  '  *  when  the  mate  gives  me  orders  or  any  of  the 
white  officers,"  ''go  and  ask  the  boatswain  what  is 
the  meaning  of  it,"  and  then  return  and  execute 
the  command?  Did  Low  Yow,  who  ''could  not  un- 
derstand what  the  white  officers  would  tell  me," 
strain  his  eyes  in  the  fog  and  darkness  to  see  the 


54 

officer  who  'Mias  got  to  direct  liim  by  hand,  by 
signs"?  Did  Hoe  Sing  and  his  companions,  "at 
work  in  the  different  departments,  who  under- 
stood a  little  by  gesture  more  than  by  speech, ' '  and 
who  never  had  had  a  boat  drill,  try  to  master  that 
new  accomplishment  in  those  twenty  minutes  of 
heartrending  gloom. 

We  know  that  some  of  the  white  ofQcers  did  at- 
tempt to  get  the  Chinamen  to  lower  their  boats 
from  the  chocks,  but  of  these  not  one  is  left  to  tell 
the  tale.  A  quartermaster  stayed  with  his  boat  till, 
as  he  says,  "his  crew  deserted  him.''  We  could 
hardly  blame  them,  for  what  was  the  use  of 
their  remaining  and  listening  to  commands  of 
which  they  could  not  know  the  meaning?  The  last 
known  of  First  Officer  Johnson  was  just  as  the 
water  rose  to  the  upper  deck,  when  he  was  seen 
returning  from  the  fore  part  of  the  shij),  where 
his  boat  was  resting  in  the  chocks,  followed  by  sev- 
eral Chinamen.  That  boat  could  not  ha\'e  been 
launched,  for  it  had  not  been  found  at  the  time  of 
the  appraisement  some  months  later. 

A  few  officers  did  what  might  be  expected  of 
sane  and  resourceful  Anglo-Saxons  under  such 
circumstances.  They  came  together  hurriedly  and 
with  their  own  hands  successfully  launched  one 
boat.  For  them  there  was  no  time  wasted  in  in- 
terpreting, no  bungling  of  the  unfamiliar  ropes 
and  swamping  of  boats  in  the  smooth  sea.     The 


55 

white  men  actually  accomplished  something  and 
their  boat  was  the  only  one  that  took  a  passenger 
from  the  ship's  side. 

There  is  no  need  to  dwell  on  the  horror  of  that 
scene;  to  repeat  Mr.  Long's  description  of  the 
terrible  outcries  he  heard  and  the  commotion  he 
saw  back  at  the  stern,  or  Officer  Coghlan's  account 
of  the  Chinese  passengers,  who,  finding  no  boats 
being  launched  forward,  rushed  to  the  stern  of  the 
ship ;  or  try  to  dimly  appreciate  Captain  Ward 's 
agony  when  some  five  minutes  before  his  ship  sank 
he  saw  that  his  crew  had  failed  him  at  the  boats 
and  cried  out,  "For  God's  sake,  save  the  women!" 
Before  such  a  tribunal,  I  say,  there  is  no  need 
to  dwell  on  such  considerations. 

But  how  about  the  future!  Are  these  horrors  to 
be  repeated  year  after  year?  If  the  Chinaman 
possesses  all  the  sailorlike  qualities  the  Pacific  Mail 
Captains  claim,  it  is  inevitable  that  to  him  shall 
be  intrusted  the  lives  of  the  increasing  thousands 
who  will  annually  cross  the  Pacific  Ocean.  Will 
the  decision  in  this  case  stand  for  the  proposition 
that  any  crew  made  up  from  members  of  this  vir- 
tuous nation  of  300,000,000  people  is  sufficient  at 
all  times  to  man  the  ship  ?  That  because  Chinamen 
can  be  made  good  sailors,  can  be  taught  commands 
in  a  foreign  tongue,  can  be  brought  into  that  close- 
ness of  communion  with  their  officers  which  will 
insure  quick  execution  in  an  emergency,  it  will  bo 


56 

presumed  tliat  all  these  things  have  been  done,  even 
though  every  Chinaman  swear  to  the  contrary 
and  no  officer  contradict  him? 

Or  will  this  case — coming  as  it  does  at  the  be- 
ginning of  a  tremendous  expansion  of  the  com- 
merce of  the  Pacific,  and  presenting  a  state  of  facts 
entirely  new  to  maritime  jurisprudence,  but  one 
which  the  careless,  self-interest  of  transportation 
companies  will,  unless  checked,  raise  here  time  and 
again  in  the  future— set  a  high  standard  of  dili- 
gence for  those  who  make  profit  out  of  the  carrying 
of  human  beings  on  the  sea  in  ships  ? 

Either  way  the  decision  goes  this  is  bound  to 
be  a  controlling  case.  We  cannot  but  feel  that 
its  decision  will  spell  protection  for  the  passenger 
on  the  sea,  rather  than  the  ship  owner  in  the  home 
port. 

As  we  have  shown,  the  burden  on  the  petitioner 
was  to  prove  that  his  failure  to  supply  a  sufficient 
crew,  as  required  by  the  United  States  Statute, 
COVhD  NOT  POSSIBLY  HAVE  CONTEIB- 
UTED  TO  THE  LOSS  OF  LIFE.  We  submit 
that  the  petitioner  has  not  even  shown  a  proba- 
bility that  this  did  not  contribute  to  the  loss  of  life. 
The  limitation  of  their  liability  should,  therefore, 
be  refused. 

The  Annie  Faxon,  75  Federal,  319. 
The  Guild  Hall,  58  Federal,  800. 


Due  service  of  the  icit/n'n  is  hereby  admitted  this 
day  of  February ,  IQOJ. 


S  S  33 


13 


i^-m\: 


THE  UNIVERSITY  LIBRARY 
This  book  is  DUE  on  the  last  date  stamped  below 
I 

University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •  Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

nptnrn  *^'-  '--^^^'^^^  to  the  library  from  which  it  was  borrowed. 


AP 


L-9 

.,'41(1 


AT 


58  01098  4143 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

~~iii||n||lil||1llll|ll|irJI|lll|l  II  I  ill 


AA    000  660  949    9 


t 


PLEA^   DO    NOT    REMOVE 
THIS    BOOK  CARDS 


^vMmRARYQr 


University  Research  Library 


